UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROSALIND M. ANTHONY,

Appellant,

v.

SOCIAL SECURITY 

ADMINISTRATION,

Agency.

DOCKET NUMBER

PH-0432-15-0405-I-1

DATE: July 28, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Rosalind M. Anthony, Baltimore, Maryland, pro se.

Dane Choe, Esquire, and Sandra Jackson, Esquire, Baltimore, Maryland, 

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 her demotion for unacceptable performance under chapter 43. 

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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

erroneous interpretation of statute or regulation 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). 

¶2 Effective October 5, 2014, the agency demoted the appellant from the GS-7, 

Step 7, Legal Administrative Specialist-Benefit Authorizer position to a GS-6, 

Step 8, Administrative Assistant position based on her unacceptable performance 

on the Critical Element of “Engages in Learning.” Initial Appeal File (IAF), 

Tab 4 at 35-36. This Critical Element required the appellant to: process work 

accurately; successfully complete on-the-job training; seek assistance when 

appropriate; learn to conduct research independently; demonstrate the ability to 

retain material and to apply that material when appropriate; and demonstrate

progress towards independent completion of work. Id. at 36, 62-66. The agency 

determined that the appellant failed to make adequate progress under this Critical 

Element during a required training and the agency placed her on a 30-day 

Performance Assistance Plan. Id. at 68. After the appellant failed to improve, the 

agency placed her on a 120-day Opportunity to Perform Successfully (OPS) plan. 

Id. at 55-60. The agency subsequently demoted the appellant after determining

that she failed to demonstrate acceptable performance on the OPS plan under the 

Critical Element of “Engages in Learning.” IAF, Tab 4 at 34-35, 54.
3

¶3 The appellant filed an equal employment opportunity (EEO) complaint with 

the agency challenging her demotion and alleging that the agency discriminated 

against her on the bases of her age, race, and sex. IAF, Tab 6 at 7-27; see IAF, 

Tab 27, Initial Decision (ID) at 6 n.4. After the agency issued a final agency 

decision on the appellant’s EEO complaint, she filed a timely mixed-case appeal

with the Board challenging her demotion and alleging discrimination based on 

race, sex, and age. IAF, Tab 1; see ID at 6. Based on the written record, the 

administrative judge affirmed the agency’s decision to demote the appellant. 2

 

ID at 2. The administrative judge found that the agency proved all of the 

elements required under chapter 43 to demote the appellant for unacceptable 

performance in the Critical Element of “Engages in Learning,” and that the 

appellant failed to prove her affirmative defenses of discrimination based on age, 

race, and sex. ID at 7-13. The administrative judge also found that the Board has 

no authority to mitigate an agency’s penalty determination taken under 

chapter 43. ID at 13. 

¶4 The appellant has filed a petition for review arguing that “there should be a 

closer look at the Age discrimination” claim in her case. Petition for Review 

(PFR) File, Tab 1 at 3. The appellant also appears to argue that she was unable to 

participate in the appeal due to poor representation and that she raised this issue 

before the administrative judge. Id. The agency responded in opposition to her 

petition. PFR File, Tab 3. 

¶5 An agency may reduce in grade or remove an employee for unacceptable 

performance pursuant to 5 U.S.C. § 4303 when the agency proves through 

 2 Because the appellant failed to show good cause for her failure to comply with the 

instructions contained in the hearing order, the administrative judge cancelled the

hearing requested by the appellant and issued a decision based upon the written record. 

ID at 2.
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substantial evidence 3 that: (1) the appellant’s performance fails to meet the 

established performance standards in one or more critical elements of her 

position; (2) the agency established performance standards and critical elements 

and communicated them to the appellant at the beginning of the performance 

appraisal period; (3) the agency warned the appellant of the inadequacies of her 

performance during the appraisal period and gave her an adequate opportunity to 

improve; and (4) after an adequate improvement period, the appellant’s 

performance remained unacceptable in at least one critical element. See Gonzalez 

v. Department of Transportation, 109 M.S.P.R. 250, ¶ 6 (2008). On review, the 

appellant does not object to the administrative judge’s findings that the agency 

proved that her performance was unacceptable in a critical element of her position 

and that she failed to prove her affirmative defenses of discrimination based on 

sex and race. We therefore affirm those findings. 

¶6 On review, the appellant asks the Board to take a closer look at her 

affirmative defense of age discrimination, but she submits no new evidence or 

argument in support of her claim. PFR File, Tab 1 at 3. The appellant claims that 

the administrative judge did not consider an “age chart when [the] class was 

divided.” We disagree. The administrative judge reviewed the data showing that

6 of the 8 trainees over the age of 40 failed the training, while only 1 of the 7

trainees under 40 was unsuccessful. Id.; ID at 11-13. The administrative judge 

considered this data troubling, but found that an in-depth review of the evidence 

supported the agency’s position that it did not treat the trainees differently based 

on age. ID at 12. 

¶7 In reaching his decision, the administrative judge also considered the 

declaration of a 61-year-old African American woman who explained that the 

trainees experiencing difficulties were put in the same class to provide more 

 3 Substantial evidence is that degree of evidence that a reasonable person, considering 

the record as a whole, might accept as adequate to support a conclusion, even though 

other reasonable persons might disagree. See 5 C.F.R. § 1201.56(c)(1). 
5

training and assistance to help them improve. ID at 12-13. The administrative 

judge further considered the EEO Report of Investigation into the appellant’s 

claims of discrimination and the exhibits included with her filings. ID at 11-13. 

The administrative judge found that the agency offered a legitimate 

nondiscriminatory reason for dividing the trainees into two classes and that the 

appellant offered no evidence to show that the reason proffered by the agency was 

pretext. ID at 13. 

¶8 The administrative judge found, moreover, that the agency applied the same 

objective performance measures to all trainees and did not discriminate in 

deciding who passed and who failed the Benefit Authorizer training. Id. The 

administrative judge determined that the appellant did not claim, and there was no 

evidence to suggest, that the agency applied those standards more rigorously 

when assessing older female trainees or that it intentionally failed those trainees 

despite having met the standard. Id. The administrative judge further found that 

the appellant admitted that she was unable to meet the required standard of 

processing at least five cases a day with a required minimum accuracy rate. Id. 

Based on our review, we find that the appellant has failed to identify any factual

or legal basis for disturbing the administrative judge’s well-reasoned initial 

decision finding that she failed to prove her affirmative defense of age 

discrimination. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997)

(stating that there is no reason for disturbing the initial decision where the 

administrative judge 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).

¶9 Next, the appellant argues on review that she was denied adequate 

representation below and that she informed the administrative judge about this 

issue. PFR File, Tab 1 at 3. The appellant, however, is responsible for the

alleged errors of her chosen representative, except where her diligent efforts to 

prosecute her appeal are thwarted by her representative’s negligence or 
6

malfeasance. Moore v. Department of Veterans Affairs, 80 M.S.P.R. 268, 271 

(1998). The appellant states that, occasionally, her union attorney representatives 

did not “work with” her and that she did not know the law. PFR File, Tab 1 at 3. 

She also asserts that she missed the hearing and a prehearing settlement 

opportunity because of poor representation, and she feels like she “was set up for 

failure.” Id. Having considered the appellant’s arguments, we find that she has 

not shown that her union representatives’ negligence or malfeasance thwarted her 

diligent efforts to prosecute her appeal. 

¶10 Moreover, the record reflects that the administrative judge cancelled the 

hearing because the appellant failed to show good cause for her failure to comply 

with the hearing order and submit prehearing submissions and participate in the 

prehearing teleconference. IAF, Tabs 18, 22. The administrative judge rejected 

the appellant’s argument that her noncompliance should be excused because she 

was unable to obtain legal representation. IAF, Tab 22 at 2. The administrative 

judge noted that he informed the appellant at a status conference about her 

obligation to file prehearing submissions, the filing deadline, and the date of the 

prehearing teleconference. Id. The administrative judge also noted that he issued 

the hearing order immediately after the status conference and provided the 

appellant with clear written notice of these obligations. Id. Finally, after the 

administrative judge cancelled the hearing, he allowed the appellant to submit 

additional evidence in support of her appeal, the appellant availed herself of that 

opportunity, and the administrative judge considered these submissions in 

reaching his decision. Id.; ID at 2 n.2. We therefore deny the petition for review

and affirm the initial decision.
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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 U.S. 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. 

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 
8

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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board