UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TODD I. WEATHERSBEE, DOCKET NUMBER
Appellant, SF-0432-15-0634-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: August 18, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Todd I. Weathersbee, Los Angeles, California, pro se.
Richard I. Anstruther, Esquire, San Francisco, California, 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
sustained his performance-based removal. 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 or the erroneous application of the law to the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 The appellant served as a GS-11 Revenue Officer with the agency’s Internal
Revenue Service (IRS) in San Diego. His duties required him to: collect
delinquent tax and secure delinquent returns from taxpayers who have not
resolved their obligations in response to prior correspondence or other contact;
counsel taxpayers on their tax filing, deposit and payment obligations actions
needed to bring them into full compliance; provide customer service; perform
credit and financial analysis of taxpayer financial records as necessary; perform
financial investigations in certain situations; plan and take appropriate
enforcement actions to secure an assessment on past due returns; and manage
delinquency cases and complete required case actions. Initial Appeal File (IAF),
Tab 8 at 72-73. By memorandum of August 7, 2014, the appellant’s first-line
supervisor notified him that his performance had been unacceptable in four of his
five critical elements: (II) Customer Satisfaction-Knowledge; (III) Customer
Satisfaction-Application; (IV) Business Results-Quality; and (V) Business
Results-Efficiency. The notice set out 47 specific examples of how the
appellant’s performance failed to meet the performance standards and explained
that he would be afforded a 90-day performance improvement period (PIP) to
demonstrate at least minimally acceptable performance, and that, during that
time, he would meet regularly with his supervisor to review his progress. Id.
3
at 36-51. On November 3, 2014, the appellant’s supervisor advised him that,
based on case reviews conducted between September 1 and October 31, 2014, he
was continuing to fail in all four critical elements. IAF, Tab 7 at 132-33.
On March 4, 2015, the appellant’s second-line supervisor proposed his removal
for failure to perform at the minimum level required for retention in his position
under critical elements II, IV, and V. Id. at 105‑28. After the appellant
submitted a written reply, id. at 17-102, the Area Director issued a decision
finding the reasons and specifications sustained, warranting the appellant’s
removal, effective May 15, 2015, id. at 14‑16.
¶3 On appeal, the appellant challenged the agency’s action and argued that it
was discriminatory based on race, color, and sex, and retaliatory based on an
equal employment opportunity (EEO) complaint he had filed in January 2014.
IAF, Tab 1 at 7, 43-47. He also raised allegations of harmful procedural error,
claiming that he never received the letter of decision and that he was on medical
leave from approximately November 3, 2014, to January 12, 2015. Id. at 7. He
requested a hearing. Id. at 2.
¶4 In her initial decision based on the written record, 2 IAF, Tab 109, Initial
Decision (ID), the administrative judge first addressed the agency’s action. She
found that the Office of Personnel Management had approved the agency’s
performance appraisal system and any significant changes to it, ID at 12-13; that
the agency communicated to the appellant the critical elements and performance
standards of his position, ID at 13-14; that the performance standards were valid
under 5 U.S.C. § 4302(b)(1), ID at 14-15; that the agency warned the appellant of
the inadequacies of his performance during the PIP and gave him a reasonable
opportunity to demonstrate acceptable performance, ID at 15-17; and that the
agency proved by substantial evidence that the appellant’s performance remained
2
At a later point during the processing of the appeal, the appellant requested a decision
on the record. IAF, Tabs 16, 29.
4
unacceptable in one or more critical elements for which he was provided an
opportunity to demonstrate acceptable performance, ID at 17-18. The
administrative judge concluded that the agency proved by substantial evidence
that the appellant’s performance was unacceptable. ID at 18‑19.
¶5 In addressing the appellant’s affirmative defenses, the administrative judge
first considered his claim of harmful procedural error based on his absence due to
illness for 23 days, beginning on November 13, 2014. The appellant claimed that
he was thereby denied a full 90 days in which to demonstrate improved
performance. The administrative judge considered the appellant’s supervisor’s
declaration that the appellant’s PIP was extended for 2 days in that the PIP, which
was to end on November 5, 2014, was suspended when the appellant went on
leave, and that he completed it on January 7, 2015, 2 days after he returned to
duty. ID at 7, 17; IAF, Tab 70 at 34. The administrative judge found that the
agency afforded the appellant a full 90-day period in which to demonstrate
improved performance and that, even if the agency erred in not providing the
appellant an additional 23-day extension, he did not show, or even allege, that
such an extension would have resulted in a different result, based largely on his
refusal to participate in the PIP, deeming it improper. ID at 17.
¶6 The administrative judge then considered the appellant’s second claim of
harmful procedural error; that is, that the agency failed to properly serve him a
copy of the letter of decision. Here, the administrative judge reviewed evidence,
which she found to be consistent with the agency’s assertions, that it mailed three
copies of the decision letter to the appellant, one by first-class mail, one by
certified mail, and one by United Parcel Service overnight delivery, and that the
latter two were returned as “refused.” She considered the appellant’s claim that
he did not refuse any letters but rather that the mail processing center he had
designated to receive his mail did so. The administrative judge found that the
center acted as the appellant’s agent and that its action in refusing the letters was
imputed to him, and was consistent with his having advised his supervisor, the
5
day after the decision was mailed, that he had placed a “global” direction that
mail from the IRS be refused. ID at 22; IAF, Tab 70 at 83. The administrative
judge further found that the third letter, the one sent by first-class mail, was
presumed to be delivered to the appellant, that any harm he suffered by failing to
read it or to acknowledge its receipt was not due to any action or inaction of the
agency, and that therefore he did not establish harmful error. ID at 23‑24.
¶7 The administrative judge next addressed the appellant’s claim that the
agency’s action was discriminatory based on his race (African American), color
(black) and sex (male). 3 She found that the appellant failed to show, by
documents from his prior EEO complaint, that any of these prohibited
3
During development of the case, the agency sought to depose the appellant in
Los Angeles, IAF, Tab 14 at 12-13, the city of his address of record. He expressed an
unwillingness to attend on the designated date, claiming a lack of funds to travel. Id.
at 47-53, 42. The agency offered to conduct the deposition on a different date, but the
appellant indicated that he could not guarantee his presence on the new date, id. at 31,
stating that he would “not attend a deposition for you,” id. at 30. The agency filed a
motion to sanction him for his nonappearance or to compel his attendance on a future
date. Id. at 4-11. Following a status conference, the agency filed another motion to
depose the appellant, IAF, Tab 20, and the administrative judge ordered him to appear
for deposition in San Diego, his former work site, explaining that his failure to do so
may result in sanctions, IAF, Tab 21. The appellant again indicated that he was unsure
if he would be able to attend. IAF, Tab 23. He then advised the administrative judge
that he intended to relocate to South Carolina and offered to be deposed there. IAF,
Tab 24. Noting that the appellant had failed to advise the Board of any change in his
address, the administrative judge declined to order the agency to travel 3,000 miles to
take the deposition. IAF, Tab 32. When the appellant failed to appear at the deposition
in San Diego, the agency filed another request for sanctions, seeking, inter alia, a ruling
barring the appellant from submitting any evidence or relying on any evidence already
submitted. IAF, Tab 60. The administrative judge found that the appellant voluntarily
and intentionally failed to appear at the San Diego deposition and ruled that he was
precluded from introducing as evidence concerning his affirmative defenses any
statement under oath in which he made statements in the nature of evidence. IAF,
Tab 76. The appellant has not challenged the administrative judge’s imposition of
sanctions and we discern no basis upon which to disturb it. Smets v. Department of the
Navy, 117 M.S.P.R. 164, ¶ 11 (2011) (finding that the administrative judge did not
abuse her discretion when she precluded the appellant from submitting additional
evidence regarding her claim of disability discrimination as a sanction for the
appellant’s failure to comply with the administrative judge’s order to appear for
a deposition).
6
considerations was a motivating factor in his removal; that he pointed to no other
employee, different from him on a protected basis, who was similarly situated to
him but treated more favorably; and that, considering her finding that the agency
proved that the appellant’s performance was unacceptable, he did not show that
the agency’s stated reason for removing him was a pretext for discrimination. As
such, she denied these affirmative defenses. ID at 24-27. The administrative
judge next addressed the appellant’s claim that his removal was retaliatory based
on the EEO complaint he had filed that was pending before the Equal
Employment Opportunity Commission (EEOC) when he was removed. Although
the administrative judge found that the complaint named most of the same
officials involved in the appellant’s removal, she concluded, based on the strong
evidence in the record supporting the appellant’s poor performance, that he failed
to meet his overall burden of proving retaliation. ID at 27‑29.
¶8 Concluding that the appellant failed to show harmful procedural error,
discrimination, or retaliation, the administrative judge affirmed the action, noting
that the Board lacks the authority to mitigate penalties in performance-based
actions taken under 5 U.S.C. chapter 43. ID at 19, 28-29.
¶9 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, the agency has responded in opposition, PFR File, Tab 3, and the
appellant has replied thereto, PFR File, Tab 4.
¶10 The appellant argues on review that the administrative judge’s ruling on
jurisdiction was “not consistent with procedure” and constituted an abuse of
discretion. 4 PFR File, Tab 1 at 4, 17, Tab 4. The appellant contends that, if the
4
The appellant raised the issue of jurisdiction in a petition for review he filed prior to
issuance of the initial decision. IAF, Tab 106. He explained that he did so as “a formal
indication/notification that the record on this appeal is closed and no additional
evidence/argument will be submitted or taken into account.” IAF, Tab 103. The
administrative judge advised him that, until the initial decision was issued, Board
regulations provide no procedure for a “premature” petition for review and that such
pleadings would either be rejected or simply inserted into the file below. IAF, Tab 102.
7
administrative judge had ruled on his order on jurisdiction, the appellant “will be
the prevailing party and the issuance of an initial decision would be the resulting
action.” PFR File, Tab 1 at 18.
¶11 As noted, when the appellant filed his appeal, he claimed that he did not
receive the agency’s letter of decision. IAF, Tab 1 at 7. In acknowledging the
appeal, the administrative judge advised him that jurisdiction does not vest until
the agency has issued a final decision, that he had the burden to prove the Board’s
jurisdiction over his appeal, and that, unless he amended his appeal to show that a
final decision had been issued, it would be dismissed. IAF, Tab 2 at 2. In
response, the appellant argued that the Board had jurisdiction over his appeal of
his performance-based removal under 5 U.S.C. chapter 43. 5 IAF, Tab 3. After
the agency submitted its file, IAF, Tabs 6-8, and indicated that it had no
submissions to make as to whether the appeal fell within the Board’s jurisdiction,
IAF, Tab 9, the administrative judge found that the Board had jurisdiction over
the appeal and she discharged her earlier order to the appellant, IAF, Tab 10.
¶12 As such, the administrative judge did rule on the issue of jurisdiction and
she ruled in the appellant’s favor on that point. However, that initial ruling only
allowed the case to proceed to adjudication; it did not, as the appellant contends,
render him a “prevailing party.” On the contrary, after examining the record, the
administrative judge found that the agency had proven its performance-based
charges against the appellant, and that he had not established any of his
affirmative defenses, resulting in her affirming the agency’s action. The
appellant has not explained how the administrative judge’s ruling on jurisdiction
was erroneous or how it otherwise adversely affected the outcome of the case
The administrative judge received the appellant’s petition for review into the record,
but, finding it lacking in substantive import, she did not address it. ID at 11 n.3.
5
At that time, the appellant was represented by counsel. IAF, Tab 1. His counsel
subsequently withdrew, IAF, Tab 13, and thereafter the appellant appeared pro se,
continuing to do so in this petition for review.
8
since a contrary ruling would have resulted in the administrative judge’s
dismissal of the appellant’s appeal without consideration of any of his claims or
affirmative defenses.
¶13 On the merits, the appellant argues on review that he challenged every
incident set forth in the PIP notice, and that only three were accurate. PFR File,
Tab 1 at 14-15. The record reflects that, with his response to the notice of
proposed removal, the appellant submitted his response to the agency’s notice
that he was to be placed on a PIP, which included his challenge to every case
commentary relied upon by the agency in determining to place him on a PIP.
IAF, Tab 7 at 63-98. However, there is no requirement that an agency establish
the unacceptability of pre-PIP performance. Thompson v. Department of the
Navy, 89 M.S.P.R. 188, 196 (2001). The appellant did not at that time, nor during
adjudication, specifically challenge the examples of unacceptable performance
relied upon by the agency in proposing his removal. The agency’s detailed
proposal notice included numerous specific and detailed examples of the
appellant’s unacceptable performance, 18 under critical element II, 27 under
critical element IV, and 29 under critical element V. IAF, Tab 7 at 105-28; see
DePauw v. U.S. International Trade Commission, 782 F.2d 1564, 1566‑67
(Fed. Cir.) (observing that specifications in a notice of proposed removal under
chapter 43 that are sufficiently detailed to be disputed by the appellant may be
considered as evidence). In addition, the agency submitted copies of forms it
used to provide written feedback on the appellant’s case work, IAF, Tab 70
at 49-80, and a declaration by the appellant’s supervisor addressing his
performance during the PIP, id. at 33-39. Notwithstanding the appellant’s
assertion on review that his performance was “not actually unacceptable,”
PFR File, Tab 1 at 6, we agree with the administrative judge’s well-supported
finding that the agency proved by substantial evidence that the appellant’s
performance in one or more critical elements remained unacceptable despite
being afforded an opportunity to improve, ID at 17‑19.
9
¶14 The appellant challenges on review the administrative judge’s finding that
he did not establish his claim of harmful procedural error based on his alleged
failure to receive the agency’s letter of decision. PFR File, Tab 1 at 10-12. The
appellant first argues that none of the letters was mailed from the office of the
deciding official who generated the letter. Id. at 10. Even assuming that the
appellant is correct and that the source of the mailings constituted an error on the
agency’s part, he has not shown how he was harmed thereby because he has failed
to show, nor is it otherwise apparent, that any such error was likely to have
caused the agency to reach a conclusion different than the one it would have
reached in the absence or cure of the error. Vena v. Department of Labor,
111 M.S.P.R. 165, ¶ 9 (2009). Next, the appellant denies that he received the
third letter, the one sent by first-class mail. PFR File, Tab 1 at 10. He contends
that, if indeed the letter were sent, “most likely” the mail processing center would
have returned it, as it did the others. Id. at 10-11. The Board presumes that
documents placed in the mail are received in 5 days. Williamson v. U.S. Postal
Service, 106 M.S.P.R. 502, ¶ 7 (2007). The administrative judge found that
evidence submitted by the agency supported its position that, like the other two
letters, the third letter was mailed to the appellant at his address of record, which
is a mail processing center, ID at 24 n.10, that that evidence was both internally
consistent and consistent with documentary evidence sufficient to invoke the
presumption of receipt, ID at 21-22, and that the appellant had offered nothing to
rebut the presumption of receipt, ID at 23. The appellant’s mere supposition on
review that the mail processing center likely returned the third letter is
insufficient to rebut the presumption of receipt. We find, therefore, that the
appellant has not shown that the administrative judge erred in finding that he did
not establish procedural error on the part of the agency as to his claimed
nonreceipt of the letter of decision. 6
6
Despite the appellant’s claim that he did not receive the letter of decision, he filed a
10
¶15 Regarding the appellant’s other affirmative defenses, he states on review
that he “will not request that the EEO matter be addressed within this petition for
review,” PFR File, Tab 1 at 7, and indeed he has not challenged any of the
administrative judge’s findings regarding his claims of discrimination and
retaliation for protected EEO activity. 7 Based on our review, we find that the
administrative judge applied current Board law to analyze these claims, see
Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 42 (2015), and to find
them unsupported. We discern no reason to reweigh the evidence or substitute
our assessment of the record evidence for that of the administrative judge.
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997).
¶16 Finally, the appellant appears to argue on review that the administrative
judge was biased against him because, in his view, she prejudged the appeal,
ensuring that the agency’s action would be affirmed. PFR File, Tab 1 at 13, 16.
An administrative judge’s conduct during the course of a Board proceeding
warrants a new adjudication only if the administrative judge’s comments or
actions evidence “a deep-seated favoritism or antagonism that would make fair
judgment impossible.” Bieber v. Department of the Army, 287 F.3d 1358,
1362‑63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555
(1994)). However, in making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). The appellant’s complaints about
the administrative judge’s conduct in the adjudication of his appeal do not
evidence anything that would make fair judgment impossible and are insufficient
to overcome the presumption of honesty and integrity that accompanies
timely appeal of the agency’s action. IAF, Tab 1.
7
We need not address the appellant’s claims regarding the EEOC’s processing of a
complaint he allegedly filed in 2015, PFR File, Tab 1 at 7-9, a matter nowhere raised in
this appeal.
11
administrative adjudicators. Young v. U.S. Postal Service, 115 M.S.P.R. 424,
¶ 19 (2010).
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
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.
12
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
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.