UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 31

Docket No. AT-0432-13-7724-I-2

Valerie Ann Thompson,

Appellant,

v.

Department of the Army,

Agency.

April 8, 2015

Bernard H. Dempsey, Esquire, Winter Park, Florida, for the appellant.

Laura A. Cushler, Esquire, and Jeff Fullmer, Orlando, Florida, for the 

agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The agency has filed a petition for review of the initial decision that 

reversed the appellant’s removal under 5 U.S.C. chapter 43. For the reasons set 

forth below, we DENY the petition for review and AFFIRM the initial decision. 

BACKGROUND

¶2 The appellant is an NH-0343-03 Program Analyst for the agency. MSPB 

Docket No. AT-0432-13-7724-I-1 (I-1), Initial Appeal File (IAF), Tab 8, Subtab 

4a. The appellant’s duties in that position include various functions relating to 
2

financial management of agency programs, allocation of program resources, and 

adjustments to program objectives and policies. Id., Subtab 4l at 2. 

¶3 The appellant’s position is subject to an Office of Personnel Management 

(OPM) demonstration project known as the “Contribution-based Compensation 

and Appraisal System” (CCAS). See 64 Fed. Reg. 1426 (Jan. 8, 1999). The 

intent is to implement a “contribution-based” appraisal system as opposed to the 

“performance-based” systems normally contemplated under 5 U.S.C. chapter 43. 

64 Fed. Reg. at 1451-52, 1480. Positions under CCAS are grouped into four 

“broadbands,” rather than assigned particular grades and steps as under the 

General Schedule. Id. at 1450. Contribution is rated through “contribution 

scores” in each of the following critical factors:1

 (1) Problem Solving, 

(2) Teamwork/Cooperation, (3) Customer Relations, (4) Leadership/Supervision, 

(5) Communication, and (6) Resource Management. Id. at 1427, 1452. Each 

factor has multiple levels of increasing contribution corresponding to the 

broadband levels and contains descriptors for each respective level within the 

relevant career path. Id. at 1452. Because CCAS is a contribution-based system, 

undercontributing employees are subjected to “contribution-based,” rather than 

“performance-based,” actions. Id. at 1480-81. Acceptable contribution for any 

given broadband is determined by reference to the “contribution score” assigned 

to that broadband, i.e., the contribution level expected of an employee occupying 

a position under that broadband, and the opportunity to demonstrate acceptable 

performance under 5 C.F.R. § 432.103(d) has been replaced by the analogous 

“contribution improvement period” (CIP). 64 Fed. Reg. at 1428, 1452, 1480-81. 

Nevertheless, despite the changes in terminology and major concepts, 

contribution-based actions under CCAS share similarities with traditional 

 1 “Critical factor” has the same meaning as “critical element” under 5 C.F.R. 

§ 432.103(b). 64 Fed. Reg. at 1480-81.
3

performance-based actions under 5 U.S.C. chapter 43 and are appealable to the 

Board under that chapter. 64 Fed. Reg. at 1481.

¶4 Turning to the facts of this case, on April 16, 2013, the appellant’s 

supervisor placed her on a 60-day CIP. I-1, IAF, Tab 8, Subtab 4e. The CIP 

notice identified five specific problems with the appellant’s work contributions in 

the Problem Solving, Communication, and Resource Management factors, as well 

as six specific actions that she was required to take in order to bring her 

contribution to an acceptable level. Id. It provided for weekly training and status 

meetings between the appellant and her supervisor, the Business Manager, and 

the Associate Chief Financial Manager–Programs. Id. at 2. It also provided for 

biweekly progress meetings. Id. On July 30, 2013, after the CIP expired, the 

appellant’s supervisor proposed her removal based on a charge of “Unsatisfactory 

Work Performance,” citing numerous instances of unsatisfactory contribution 

during the CIP in the areas of Problem Solving, Communication, and Resource 

Management. Id., Subtab 4d. On August 29, 2013, the agency issued a final 

decision removing the appellant. Id., Subtab 4c.

¶5 The appellant filed the instant Board appeal, arguing among other things 

that the agency’s action was based on age discrimination and retaliation for prior 

equal employment opportunity activity. 2

 I-1, IAF, Tab 1 at 4-5; I-2, IAF, Tab 26 

at 1-2. After a hearing, the administrative judge issued an initial decision 

reversing the removal on the merits. ID at 2, 12-13. Specifically, he found that 

the agency failed to carry its burden of showing by substantial evidence that the 

appellant’s contribution under the CIP was unacceptable and that the agency 

provided her a reasonable opportunity to improve. ID at 4-9. The administrative 

 2 The appellant also claimed that the agency committed harmful procedural error. 

MSPB Docket No. AT-0432-13-7724-I-2 (I-2), IAF, Tab 26 at 2. However, because the 

administrative judge reversed the appellant’s removal on the merits, he did not reach 

this issue. I-2, IAF, Tab 46, Initial Decision (ID) at 12. Neither party challenges this 

well-reasoned finding on review.
4

judge also found that the appellant failed to prove her affirmative defenses of age 

discrimination and retaliation for EEO activity. 3

 ID at 9-12.

¶6 The agency has filed a petition for review, arguing that it provided 

substantial evidence to show that the appellant’s contribution during the CIP was 

inadequate and that the CIP provided her a reasonable opportunity to improve. 

I-2, Petition for Review (PFR) File, Tab 1 at 10-15. The petition for review 

includes a large amount of documentary evidence. PFR File, Tab 1 at 11, 17-94, 

Tabs 3-7. The appellant has filed a response in opposition. PFR File, Tab 11.

ANALYSIS

¶7 The administrative judge found that the elements of a typical chapter 43 

appeal do not apply to an appeal of a contribution-based action under the CCAS 

demonstration project. ID at 2-4; cf. White v. Department of Veterans Affairs, 

120 M.S.P.R. 405, ¶ 5 (2013) (listing the usual elements of a performance-based 

action appeal under 5 U.S.C. chapter 43). Rather, the administrative judge found, 

and neither party disputes, that, to prevail in an appeal of a CCAS 

contribution-based action, the agency must show by substantial evidence that: 

(1) it notified the appellant that she would be placed on a CIP; (2) it informed her

of what she must do during the CIP to demonstrate acceptable contribution and 

warned her that failure to do so could result in an adverse action; (3) it gave her a 

reasonable opportunity to demonstrate acceptable contribution during the CIP; 

and (4) the appellant’s contribution was unacceptable during the CIP. 4

 ID at 4. 

In this case, only elements 3 and 4 are at issue.

 3 The appellant does not challenge the administrative judge’s findings on her 

affirmative defenses.

4 These requirements are consistent with the OPM demonstration project, which permits 

a reduction in pay or removal after an agency places an employee on a CIP that advises 

her regarding how her contribution is inadequate, what improvements are required, how 

she might achieve adequate contribution, the assistance that the agency will provide, 
5

The agency failed to prove by substantial evidence that the appellant’s 

contribution during the CIP was unacceptable.

¶8 In his initial decision, the administrative judge found that the agency 

presented “almost no evidence” to show that the appellant’s contribution during 

the CIP was unacceptable. ID at 6. He found that the agency’s response to the 

acknowledgment order, “where supporting evidence is typically found, contains 

none whatsoever.” ID at 5; I-1, IAF, Tab 8. He further found that the only other 

documentary evidence that the agency provided consisted of a few email 

messages that bore no apparent relation to the allegations in the notice of 

proposed removal. ID at 5; I-1, IAF, Tab 8, Subtab 4d; I-2, IAF, Tab 16 at 16-22. 

Finally, the administrative judge found that the agency adduced no testimony at 

the hearing to shed any light on the significance of these emails and that the 

appellant’s supervisor provided only “fleeting” testimony regarding a couple of 

the specifications in the notice of proposed removal. ID at 5-6.

¶9 On review, the agency argues that the administrative judge ignored the 

“mountain” of evidence that it provided to show that the appellant’s performance 

during the CIP was inadequate. PFR File, Tab 1 at 10. The agency asserts that 

this evidence is found in (1) the appellant’s supervisor’s testimony, (2) two 

counseling statements, (3) the notice of proposed removal, (4) the Business 

Manager’s sworn statement, (5) nine pages of unsatisfactory performance

examples, (6) a mid-point CCAS review, and (7) various documents found in its 

prehearing submissions. Id. We will address each of these items in turn.

¶10 Regarding the supervisor’s testimony, the agency asserts that the 

supervisor testified for over 7 hours, but it does not explain what the testimony 

was about or how the administrative judge’s characterization of it was inaccurate. 

Id.; ID at 5-6. A petition for review must contain sufficient specificity for the 

 

and the consequences for failure to improve. 64 Fed. Reg. at 1481. The employee is to 

be afforded a reasonable opportunity to improve. Id.
6

Board to ascertain whether there is a serious evidentiary challenge justifying a 

complete review of the record. Tines v. Department of the Air Force, 

56 M.S.P.R. 90, 92 (1992). Under the Board’s regulations, the petition for review 

itself must identify any procedural or adjudicatory errors and explain how they 

affected the outcome of the initial decision. 5 C.F.R. §§ 1201.114(b), 

1201.115(b)-(c). In the absence of any explanation of why the supervisor’s 

testimony warrants a change in the outcome of the appeal, we will not review 

7 hours of hearing testimony to search for an answer.

¶11 Regarding the counseling statements that the agency identifies on review, 

they are dated December 10, 2012, and March 25, 2013, and pertain to matters 

that occurred before the agency placed the appellant on her April 16, 2013 CIP. 

PFR File, Tab 1 at 10; I-1, IAF, Tab 8, Subtabs 4h-4i. We find that they are 

immaterial to the outcome of the appeal because the matters described in these 

counseling memoranda are not included among the specific alleged incidents of 

poor performance that served as the basis for the proposed removal. I-1, IAF, 

Tab 8, Subtab 4d. As a matter of due process, an agency must provide an 

employee with notice and an opportunity to respond to information material to a 

proposed removal. See Stone v. Federal Deposit Insurance Corporation, 

179 F.3d 1368, 1376 (Fed. Cir. 1999) (“procedural due process guarantees are not 

met if the employee has notice only of certain charges or portions of the evidence 

and the deciding official considers new and material information”); Silberman v. 

Department of Labor, 116 M.S.P.R. 501, ¶¶ 12, 14 (2011) (finding that the

deciding official’s consideration of prior supervisory memoranda not listed in the 

proposal notice violated the appellant’s right to due process). Moreover, if an 

employee demonstrates acceptable performance during an improvement period, 

the agency may not remove her based solely on deficiencies which preceded and 

triggered the improvement period. Brown v. Veterans Administration, 

44 M.S.P.R. 635, 640 (1990).
7

¶12 As for the notice of proposed removal itself, the Board and the U.S. Court 

of Appeals for the Federal Circuit have found that a detailed proposal notice, 

such as this one, can constitute part of the agency’s valid proof of its charges. 

I-1, IAF, Tab 8, Subtab 4b; see DePauw v. U.S. International Trade Commission, 

782 F.2d 1564, 1566-67 (Fed. Cir. 1986); Towne v. Department of the Air Force, 

120 M.S.P.R. 239, ¶ 24 (2013); Fernand v. Department of the Treasury, 

100 M.S.P.R. 259, ¶ 10 (2005), aff’d, 210 F. App’x 992 (Fed. Cir. 2007); Gill v. 

Department of the Navy, 34 M.S.P.R. 308, 311 (1987). However, the proposal 

notice on its own is not enough for the agency to meet its burden of proof; it must 

be accompanied by corroborating evidence, which we find in this case to be 

lacking. See Delancy v. U.S. Postal Service, 88 M.S.P.R. 129, ¶ 8 (2001); Perez 

v. Railroad Retirement Board, 65 M.S.P.R. 287, 289 (1994).

¶13 Regarding the Business Manager’s statement, we note that it is not “sworn” 

as the agency claims it is on review. PFR File, Tab 1 at 10; I-1, IAF, Tab 8, 

Subtab 4b at 1-3; see Social Security Administration v. Whittlesey, 59 M.S.P.R. 

684, 692 (1993) (a sworn statement has greater weight than one that is unsworn), 

aff’d, 39 F.3d 1197 (Fed. Cir. 1994) (Table). Furthermore, to the extent that this

unsworn statement addresses the appellant’s contribution during the CIP, it is 

couched in generalities and does not specifically address any of the allegations 

set forth in the notice of proposed removal. I-1, IAF, Tab 8, Subtab 4b at 2-3. 

Nevertheless, we find that the Business Manager’s statement lends some general 

credence to the agency’s allegations that the appellant made multiple errors in her 

checkbooks and that on April 26, 2013, the appellant provided the agency

inaccurate information due to her failure to understand what constitutes a “direct 

mission” program. I-1, IAF, Tab 8, Subtab 4b at 3, Subtab 4d at 4, 6-7. 

¶14 As for the materials accompanying the Business Manager’s statement, 

these appear to consist of some of the appellant’s work product from the CIP. 

I-1, IAF, Tab 8, Subtab 4b at 4-12. These documents contain annotations in red, 

some of which are not legible or contain unexplained acronyms, codes, and 
8

abbreviations. Id. In any event, the appellant’s work is of a technical nature and

any errors that these documents may contain are not apparent on their face, and 

the annotations themselves do little to clarify the matter. Nor does the agency

attempt to link these documents to the allegations in its notice of proposed 

removal—the allegations that it is required to support by substantial evidence in 

order to carry its burden in this appeal. Nevertheless, we have compared these 

materials to the notice of proposed removal on our own, and we have linked them 

to two specific allegations: the appellant failed to update the heading of a 

worksheet to include congressional reductions, and she used an incorrect “WBS.” 

I-1, IAF, Tab 8, Subtab 4b at 4, Subtab 4d at 7. The agency alleged that these 

errors went to the appellant’s contributions in the Resource Management factor. 

I-1, IAF, Tab 8, Subtab 4d at 6-7.

¶15 Regarding the documents contained in the agency’s prehearing 

submissions, the administrative judge was unable to connect them to any specific 

allegations found in the notice of proposed removal. 5

 ID at 5; I-2, IAF, Tab 16 at 

16-30. Despite this, the agency has not attempted to clarify the import of these 

documents on review. Nevertheless, we have reviewed them independently, and 

we are able to connect one email with an allegation in the notice of proposed 

removal. Specifically, the agency alleged that, on May 21, 2013, in response to a 

request for funding, the appellant attempted to provide funds from an improper 

source and without following the proper procedures. I-1, IAF, Tab 8, Subtab 4d 

at 6. One of the email chains that the agency submitted appears to support this. 

I-2, IAF, Tab 16 at 19-22. The agency alleged that this error went to the 

Communications factor. I-1, IAF, Tab 8, Subtab 4d at 6.

 5 The administrative judge stated that there were only five exhibits attached to the 

agency’s prehearing submissions, when in fact there were eight. ID at 5; I-2, IAF, Tab 

16 at 7-30. However, we find that this adjudicatory error was not prejudicial to the 

agency and provides no basis to reverse the initial decision. Panter v. Department of 

the Air Force, 22 M.S.P.R. 281, 282 (1984).
9

¶16 Finally, the agency has submitted for the first time on review 

approximately 500 pages of documentary evidence “[t]o bolster the supervisor’s 

testimony.” PFR File, Tab 1 at 11, 17-94, Tabs 3-7. We will not consider this 

evidence because the agency has not shown that it was previously unavailable 

despite its due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 

214 (1980) (under 5 C.F.R. § 1201.115, the Board generally will not consider 

evidence submitted for the first time with the petition for review absent a 

showing that it was unavailable before the record was closed despite the party’s 

due diligence). Although the agency asserts that it provided the appellant with 

some of this evidence during the discovery process, PFR File, Tab 1 at 11 & n.2, 

we find this fact immaterial. It was incumbent upon the agency to provide this 

evidence to the administrative judge as well if it wanted the Board to consider it 

in reaching its decision. The agency’s failure to do so below precludes it from 

doing so on review. Moreover, the agency has not shown that the evidence is 

material. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (the 

Board will not grant a petition for review based on new evidence absent a 

showing that it is of sufficient weight to warrant an outcome different from that 

of the initial decision). As with the documentary evidence that it submitted 

below, the agency has not drawn any particular connection between the evidence 

that it furnished on review and the allegations in the notice of proposed removal. 

The Board will not attempt to decipher 500 pages of technical evidence in the 

absence of an explanation of what that evidence is supposed to show. 6

 6 The appellant characterizes the agency’s untimely submission of this evidence as a 

stunt designed to taint the record and requests that the Board sanction the agency by 

refusing to consider its petition for review. PFR File, Tab 11 at 25. We find that the 

agency’s belated attempt to provide this evidence does not merit a sanction and we 

therefore DENY the appellant’s request. Cf. Hay v. U.S. Postal Service, 106 M.S.P.R. 

151, ¶ 10 (2007) (a party’s untimely response to an administrative judge’s order does 

not warrant sanctions absent a showing of prejudice).
10

¶17 As explained above, we find that the agency has provided some evidence to 

support some of the allegations in its notice of proposed removal. Supra

¶¶ 13-15. Specifically, we find that the agency has provided substantial evidence 

that, during the CIP, the appellant made two errors on the 2013 Common Training 

Instrument Architecture worksheet, supra ¶ 14, and that on May 21, 2013, the 

appellant attempted to provide funds from an improper source and without 

following the proper procedures, supra ¶ 15. There is no evidence that we can 

discern to establish the agency’s numerous other allegations of errors, even under 

the “substantial evidence” standard of proof applicable to chapter 43 actions.7

 

¶18 As for the errors that the agency proved, we find that the agency failed to 

show by substantial evidence that they rendered inadequate the appellant’s 

contributions in the Communication and Resource Management areas. There is 

no evidence of how these errors figure into the appellant’s contribution scores or 

how many and what types of errors can normally be expected of an 

adequately-contributing employee in the appellant’s position. This is not to say 

that the agency was required to establish a precise numerical limit on the number 

of errors that the appellant was allowed to commit or reduce its contribution 

assessment to a mathematical formula. See Siegelman v. Department of Housing 

& Urban Development, 14 M.S.P.R. 326, 330-31 (1983). Nevertheless, the Board

requires some sort of objective criteria by which to gauge the appellant’s 

contribution, and the agency has presented none—either by way of specific 

requirements in its contribution standards or by way of comparison to other 

NH-0343-03 Program Analysts’ contributions in these areas. See 5 U.S.C. 

 7 As explained above, we have considered the Business Manager’s unsworn statement, 

but we find that it does not constitute substantial evidence of any of the remaining 

allegations in the notice of proposed removal because it addresses the appellant’s 

performance during the CIP only in general terms. Supra ¶ 13; cf. Adamsen v. 

Department of Agriculture, 116 M.S.P.R. 331, ¶¶ 16-17 (2011) (finding an unsworn 

statement to be unreliable hearsay because it failed to identify firsthand knowledge of 

the relevant events or a factual basis for its conclusions).
11

§ 4302(b)(1) (performance standards must, to the maximum extent feasible, 

permit the accurate appraisal of performance based on objective criteria); 

Thompson v. Department of the Navy, 89 M.S.P.R. 188, ¶ 10 (2001) (comparing 

the appellant’s performance to that of other employees in the same position). To 

be clear, we are not finding that the contribution standards under the CCAS are 

invalid. In fact, the administrative judge found that the CCAS demonstration 

project waives the requirement that the agency establish a performance system 

meeting the requirements of 5 U.S.C. § 4302. ID at 3. Still, the Board requires

some evidence of what the CCAS specifically requires of the appellant in order to 

judge her contribution. In this case, we have none. See I-1, IAF, Tab 8, Subtab

4e at 1-2 (providing the appellant’s goals for the CIP without indicating the 

specific targets for accuracy that might enable her to achieve the stated goal of a 

contribution score of 61 or higher), Subtab 4g at 1 (containing the appellant’s 

April 2013 mid-year review, which lists her contribution standards in general 

terms).

¶19 The appellant’s having committed four errors of unexplained import during 

the CIP, on its face, does not support a finding that her contribution was 

inadequate during that period. There is no evidence that these four errors were of 

such gravity that a reasonable person might conclude that the appellant’s 

contribution during the CIP was inadequate solely based on their nature. Cf. 

Thompson, 89 M.S.P.R. 188, ¶¶ 2, 6, 9 (the three-error limit during the 

appellant’s 92-day performance improvement plan was reasonable because the 

limit concerned relatively significant errors that could have serious effects on the 

value of the appellant’s work). For these reasons, we agree with the 

administrative judge that the agency failed to show by substantial evidence that 

the appellant’s contribution during the CIP was inadequate.
12

The agency failed to establish by substantial evidence that the CIP provided the 

appellant a reasonable opportunity to improve.

¶20 In finding that the agency failed to meet its burden on this element of the 

case, the administrative judge weighed conflicting testimony. Specifically, he 

credited the appellant’s testimony that she had two meetings with her supervisor 

at the beginning of the CIP, and no other meetings thereafter, over the 

supervisor’s testimony that she provided the appellant guidance almost every 

week and that the Business Manager and one of the appellant’s coworkers would 

meet with the appellant when the supervisor herself was unable to meet. ID at 

7-8; see Thompson v. Farm Credit Administration, 51 M.S.P.R. 569, 579 (1991) 

(the agency failed to afford a reasonable opportunity to improve where, among 

other things, the appellant did not receive the promised supervisory assistance); 

Adorador v. Department of the Air Force, 38 M.S.P.R. 461, 464-66 (1988)

(same).

¶21 On review, the agency argues that, in reaching his conclusion, the 

administrative judge failed to assess the witnesses’ credibility properly under 

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). PFR File, Tab 1 

at 12-15. It offers an analysis of all the Hillen factors and explains why each one 

of them is either neutral or favors the supervisor’s testimony over the 

appellant’s.8

 Id. However, the administrative judge’s credibility determinations 

relate to testimony given during a videoconference hearing. The Board must give 

deference to an administrative judge’s credibility determinations when they are 

based, explicitly or implicitly, on the observation of the demeanor of witnesses 

testifying at a hearing; the Board may overturn such determinations only when it 

 8 The Hillen factors are as follows: (1) the witness’s opportunity and capacity to 

observe the event or act in question; (2) the witness’s character; (3) any prior 

inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the 

contradiction of the witness’s version of events by other evidence or its consistency 

with other evidence; (6) the inherent improbability of the witness’s version of events; 

and (7) the witness’s demeanor. 35 M.S.P.R. at 458. This list is non-exhaustive. Id.
13

has “sufficiently sound” reasons for doing so. 9 Haebe v. Department of Justice, 

288 F.3d 1288, 1301 (Fed. Cir. 2002). For the reasons explained below, we find 

that the agency has not identified any such sufficiently sound reasons.

¶22 First, the agency argues that both the appellant and the supervisor had the 

same capacity to observe the events in question because both were in attendance 

at the meetings. PFR File, Tab 1 at 12-13. This is not true. As the 

administrative judge pointed out, the supervisor testified that, when she was 

unable to meet with the appellant, two other individuals would meet with the 

appellant in her stead, but neither of these individuals testified at the hearing. 10 

ID at 7-8 & n.5. The appellant had a greater capacity than the supervisor to 

observe whether the meetings at which the supervisor was not present actually 

took place.

¶23 The agency also argues that the administrative judge erred in finding the 

appellant’s character more trustworthy than the supervisor’s. PFR File, Tab 1 at 

13. The administrative judge made no such finding, and we further find probative 

character evidence to be lacking in this case. Therefore, this credibility factor is 

entitled to little weight one way or the other.

 9 The Board has found that videoconference hearings afford administrative judges 

substantially the same opportunity to observe witness demeanor as do in-person 

hearings. Robertson v. Department of Transportation, 113 M.S.P.R. 16, ¶¶ 11-12 

(2009); Koehler v. Department of the Air Force, 99 M.S.P.R. 82, ¶¶ 10-13 (2005).

10 The agency argues that it had no reason to call these witnesses because they were not 

the appellant’s supervisors and they were not responsible for administering the CIP. 

PFR File, Tab 1 at 14. It is not clear why the agency, after reading the initial decision, 

still believes that only the appellant’s supervisor or a CIP administrator could have had 

relevant testimony to offer. The agency was on notice that the reasonableness of the 

opportunity to improve afforded to the appellant was in dispute. I-2, IAF, Tab 13 at 38, 

43-44. It could have proffered documentary evidence, or first-hand testimony, or both 

to show that it afforded the appellant the weekly meetings described in the CIP notice.
14

¶24 The agency further argues that there are no prior inconsistent statements at 

issue, and that this credibility factor is irrelevant. Id. We agree, and note that the 

administrative judge did not cite to any inconsistent statements.

¶25 Regarding witness bias, the agency argues that the appellant’s testimony is 

more likely to be biased than that of her supervisor because the appellant has 

more to lose in this case and because the supervisor could not hire a replacement 

for the appellant. Id. at 13-14. As an initial matter, we note that, even if the 

supervisor earnestly wished for the appellant to succeed during her CIP, this has 

little if any relevance to the supervisor’s wishes for the outcome of the Board 

appeal of the removal that she herself proposed after the CIP was over. 

Furthermore, most testimony that an appellant is likely to give, other than 

admissions, can be characterized as self-serving, and the Board has found that an 

appellant’s testimony should not be discredited solely on that basis. Nicoletti v. 

Department of Justice, 60 M.S.P.R. 244, 249 (1993); Gamble v. U.S. Postal 

Service, 6 M.S.P.R. 578, 580-81 (1981).

¶26 The agency also argues that the supervisor’s version of events is 

corroborated by the evidence in the agency file, as well as the evidence that it 

offers on review. PFR File, Tab 1 at 14. We have reviewed the agency file. We 

find that the statement in the CIP notice promising regular meetings throughout 

the CIP is consistent with the supervisor’s testimony, but we find that it has little 

probative value as to whether those meetings actually occurred. I-1, IAF, Tab 8, 

Subtab 4e at 2-3. We have considered statements in the notice of proposed 

removal that the appellant’s supervisor “counseled” her about her errors on three 

different occasions—June 24, July 8, and July 18, 2013. I-1, IAF, Tab 8, Subtab 

4d at 10-11. However, the agency has not identified any evidence to corroborate 

these assertions. See Delancy, 88 M.S.P.R. 129, ¶ 8. Furthermore, these 

assertions tend to show, at most, that the appellant received three of the promised 
15

twenty-one meetings (fourteen weekly and seven biweekly) promised in the CIP 

notice.11 I-1, IAF, Tab 8, Subtab 4e at 2-3. We also find that the Business 

Manager’s statement contains corroborating evidence, i.e., that the appellant’s 

supervisor met with the appellant on a weekly basis. I-1, IAF, Tab 8, Subtab 4b 

at 2. It further states that the Business Manager “sat down with [the appellant] on 

many occasions.” Id. at 3. However, because this statement is unsworn, lacks 

specificity, and is based, at least in part, on secondhand information, we find that 

it has little evidentiary value. It appears that this lack of corroborating evidence 

weighed heavily in the administrative judge’s decision to credit the appellant’s 

version of events over the agency’s. ID at 8. We agree with the administrative 

judge that, if the meetings took place as the agency asserted, there should have 

been some corroborating evidence such as meeting notes or memoranda for the 

agency to submit for the record. The agency’s failure to submit any such 

evidence casts serious doubt on its version of events. Id. As for the evidence 

that the agency offers on review, for the reasons explained above, supra ¶ 16, we 

have not considered this evidence in reaching our decision. The agency also 

alleges that the appellant made other “self-serving” uncorroborated statements 

during an off-the-record discussion at the hearing. PFR File, Tab 1 at 14. This 

discussion, by the agency’s own admission, was off the record, and hence, not a 

part of the record below. In any event, we will not consider the events that 

transpired during that conversation for purposes of impeaching the appellant’s 

credibility on review. See Bucci v. Department of Education, 42 M.S.P.R. 47, 55 

(1989) (evidence offered merely to impeach a witness’s credibility generally is

not considered new and material). To the extent that the record below contains 

evidence of this discussion, the agency has not provided us a specific citation that 

 11 This is assuming that these “counselings” were, in fact, meetings of the type 

contemplated in the CIP notice—an assumption that we decline to make. I-1, IAF, Tab 

8, Subtab 4e at 2-3. 
16

would allow us to verify the claimed impeachment testimony. See Tines,

56 M.S.P.R. at 92.

¶27 The agency appears to argue that the administrative judge did not explain 

why he found the appellant’s version of events more inherently probable than the 

supervisor’s. PFR File, Tab 1 at 14. We disagree. The administrative judge 

found that it was improbable that regular meetings would have occurred 

throughout the CIP without those meetings being somehow documented. ID at 8. 

We see no error in the administrative judge’s assessment. 

¶28 Finally, the agency argues that the initial decision is flawed because the 

administrative judge failed to describe why he believed that the appellant’s 

demeanor supported her credibility over the credibility of the supervisor. PFR 

File, Tab 1 at 15. As an initial matter, we note that an administrative judge’s 

failure to discuss each Hillen factor does not mean that he did not consider them.

Social Security Administration v. Mills, 73 M.S.P.R. 463, 475 (1996), aff’d, 

124 F.3d 228 (Fed. Cir. 1997). In any event, the administrative judge explained 

that he perceived no untruthfulness in the appellant’s testimony regarding the 

lack of weekly meetings, ID at 8, and we are satisfied that he gave due 

consideration to witness demeanor as part of his overall credibility determination.

¶29 The agency argues that the administrative judge’s credibility 

determinations lack a factual basis and therefore must have been the product of 

anti-agency bias. PFR File, Tab 1 at 12, 15. As explained above, however, we 

find that the administrative judge’s credibility determinations had an adequate 

factual underpinning. Moreover, 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). 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 
17

the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United 

States, 510 U.S. 540, 555 (1994)). We find that the agency’s allegations of bias 

do not meet this standard. The mere fact that the administrative judge rules 

against a party does not establish bias. Schoenrogge v. Department of Justice, 

76 M.S.P.R. 216, 220 (1997).

¶30 For these reasons, we find that the agency has not provided a sufficiently 

sound reason for the Board to overturn the administrative judge’s credibility 

determinations. See Haebe, 288 F.3d at 1301. Although the agency presented 

some evidence that the appellant was afforded the weekly meetings promised in 

the CIP notice, we find no basis to disturb the administrative judge’s finding that 

this did not constitute substantial evidence that the meetings took place, 

especially in light of the appellant’s credible testimony to the contrary. See 

Sandland v. General Services Administration, 23 M.S.P.R. 583, 590-91 (1984) 

(although the agency presented a prima facie case that it afforded the appellant a 

reasonable opportunity to improve his performance, the appellant rebutted the 

agency’s showing and the agency ultimately failed to meet its burden by 

substantial evidence). Because the agency failed to show by substantial evidence 

that it afforded the appellant the weekly meetings that it promised her at the 

beginning of the CIP, we agree with the administrative judge that the agency

failed to show by substantial evidence that the appellant received a reasonable 

opportunity to improve. 12 ID at 8-9; see Thompson, 51 M.S.P.R. at 579; 

Adorador, 38 M.S.P.R. at 465-66.

 12 The appellant argues on review that the CIP was insufficient because it was only 

37 working days and that the contribution standards were never communicated to her. 

PFR File, Tab 11 at 13-16. Because resolution of these arguments would not change the 

outcome of the appeal, we decline to reach them. We note, however, that even a 30-day 

improvement period can satisfy an agency’s obligation to provide an employee with a 

reasonable opportunity to improve. See Melnick v. Department of Housing & Urban 

Development, 42 M.S.P.R. 93, 101 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) 

(Table).
18

ORDER

¶31 We ORDER the agency to cancel the appellant’s removal and retroactively 

restore her effective September 27, 2013. This action must be accomplished no 

later than 20 calendar days after the date of this decision. See Kerr v. National 

Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must 

complete this action no later than 20 days after the date of this decision.

¶32 We also ORDER the agency to pay the appellant the correct amount of 

back pay, interest on back pay, and other benefits under the Back Pay Act and/or 

Postal Service Regulations, as appropriate, no later than 60 calendar days after 

the date of this decision. We ORDER the appellant to cooperate in good faith in 

the agency's efforts to calculate the amount of back pay, interest, and benefits 

due, and to provide all necessary information the agency requests to help it carry 

out the Board’s Order. If there is a dispute about the amount of back pay, interest 

due, and/or other benefits, we ORDER the agency to pay the appellant the 

undisputed amount no later than 60 calendar days after the date of this decision. 

¶33 We further ORDER the agency to tell the appellant promptly in writing 

when it believes it has fully carried out the Board's Order and to describe the 

actions it took to carry out the Board’s Order. The appellant, if not notified, 

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶34 No later than 30 days after the agency tells the appellant that it has fully 

carried out the Board’s Order, the appellant may file a petition for enforcement 

with the office that issued the initial decision in this appeal if the appellant 

believes that the agency did not fully carry out the Board’s Order. The petition 

should contain specific reasons why the appellant believes that the agency has not 

fully carried out the Board’s Order, and should include the dates and results of 

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶35 For agencies whose payroll is administered by either the National Finance 

Center of the Department of Agriculture (NFC) or the Defense Finance and 

Accounting Service (DFAS), two lists of the information and documentation 
19

necessary to process payments and adjustments resulting from a Board decision 

are attached. The agency is ORDERED to timely provide DFAS or NFC with all 

documentation necessary to process payments and adjustments resulting from the 

Board’s decision in accordance with the attached lists so that payment can be 

made within the 60-day period set forth above.

¶36 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 

NOTICE TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney 

fees and costs. To be paid, you must meet the requirements set out at Title 5 of 

the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b); 

or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R. 

§§ 1201.201, 1202.202, and 1201.203. If you believe you meet these 

requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR 

DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees 

motion with the office that issued the initial decision on your appeal.

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:
20

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 United States 

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
21

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and 

29 U.S.C. § 794a.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.
DFAS CHECKLIST

INFORMATION REQUIRED BY DFAS IN 

ORDER TO PROCESS PAYMENTS AGREED 

UPON IN SETTLEMENT CASES OR AS 

ORDERED BY THE MERIT SYSTEMS 

PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIRED B Y IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT 

CASES 

CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL 

OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address 

and POC to send.

2. Statement that employee was counseled concerning Health Benefits and TSP and the 

election forms if necessary.

3. Statement concerning entitlement to overtime, night differential, shift premium, 

Sunday Premium, etc, with number of hours and dates for each entitlement.

4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay 

System), a statement certifying any lump sum payment with number of hours and 

amount paid and/or any severance pay that was paid with dollar amount.

5. Statement if interest is payable with beginning date of accrual.

6. Corrected Time and Attendance if applicable.

ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:

1. Copy of Settlement Agreement and/or the MSPB Order. 

2. Corrected or cancelled SF 50's. 

3. Election forms for Health Benefits and/or TSP if applicable. 

4. Statement certified to be accurate by the employee which includes: 

 a. Outside earnings with copies of W2's or statement from employer.

b. Statement that employee was ready, willing and able to work during the period. 

c. Statement of erroneous payments employee received such as; lump sum leave, severance 

pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew 

Retirement Funds.

5. If employee was unable to work during any or part of the period involved, certification of the 

type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process 

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as 

ordered by the Merit Systems Protection Board, EEOC, and courts. 

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise 

information describing what to do in accordance with decision. 

2. The following information must be included on AD-343 for Restoration: 

 a. Employee name and social security number. 

 b. Detailed explanation of request. 

 c. Valid agency accounting. 

 d. Authorized signature (Table 63) 

 e. If interest is to be included. 

 f. Check mailing address. 

 g. Indicate if case is prior to conversion. Computations must be attached. 

 h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to 

be collected. (if applicable) 

Attachments to AD-343 

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday 

Premium, etc. with number of hours and dates for each entitlement. (if applicable) 

2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and 

amounts. 

3. Outside earnings documentation statement from agency. 

4. If employee received retirement annuity or unemployment, provide amount and address 

to return monies. 

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of 

the type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual 

Leave to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay 

Period and required data in 1-7 above. 

The following information must be included on AD-343 for Settlement Cases: (Lump 

Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) 

 a. Must provide same data as in 2, a-g above. 

 b. Prior to conversion computation must be provided. 

 c. Lump Sum amount of Settlement, and if taxable or non-taxable. 

If you have any questions or require clarification on the above, please contact NFC’s 

Payroll/Personnel Operations at 504-255-4630.