UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

YOLANDA A. COLLINS, Appellant,

v.
DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA

- 0432

- 14

- 0224

- I

- 1

DATE: November 26, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrew Brumsey , Harvey, Louisiana, for the appellant.
Brandi M. Powell , New Orleans, Louisiana, for the agency.

BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed her removal for unacceptable performance under c hapter 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 erroneous

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2

interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the 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 availabl e when the record closed. See Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully consider ing the filings in this appeal, and based on the following points and authorities, 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. Exce pt as expressly modified by this Final Order, we AFFIRM the initial decision. ¶2 Effective January 17, 2013, t he agency removed the appellant from her position as a Budget Analyst based on h er unacceptable performance in Critical
Element 2 of her position. Initial Appeal File (IAF), Tab 16 , Subtab s 4b, 4e

. Critical Element 2 concerns the Budget Analyst s’ performance standards for Computer Analysis, Input and Overpayment Reconstruction and Resolution. IAF , Tab 17, Subtab 4p at 2. Under C ritical Elemen t 2, to be fully successful, Budget Analyst s must: On the basis of the analysis of the overpayment record, make necessary adjustments, additions, or corrections to the master record with no more than 5 exceptions. Analyze overpayments in or der to reconstruct the payment record and determine the cause and exact amount of the debt in 10 days with no more than 20 exceptions. Accurately and timely process requests for direct deposits and school certifications within 3 workdays. Id

. ¶3 After the appellant was unsucc essful during her first 90

- day performance improvement p lan (PIP) effective September 13, 2012, the agency issued a notice on April 26, 2013, proposing her removal. IAF, T ab 17, Subtab 4n at 3

- 5, Subtab 4j at 2

- 3. The agency did not a ct on that proposal. Instead, the agency3

ent ered into a written agreement on June 6, 2013 , to send the appellant to attend
5 da ys of off

- site training in Iowa; to place her on a 90

- day PIP after she returned from training, beginning on June 17, 2013; and to provide her additional training
and bi weekly meetings with the Division Chief to provide feedback. IAF, Tab 17 , Subtab 4i at 3. ¶4 On October 23, 2013, the agency notified the appellant that it was proposing to remove her again because she was unsuccess ful in meeting Critical
E lemen t 2 during her second 90

- day PIP. IAF, Tab 16, Subtab 4e at 1

- 2 . In its notice of proposed removal, the agency stated that the parties previously agreed that the appellant’s performance would be acceptable if 75% of her case s were financially accurate and she timely returned 75% of her cases within 10 days. Id

. at 1. The agency further stated that, during the relevant period, the appellant failed to perform successfully on Critical Element 2 because her financial
accuracy was 7% and her timeliness was 33%. Id . at 1

- 2 . After considering the evidence, including the appellant’s oral and written replies to her proposed removal, the deciding official sustained the appellant’s removal effective January 17, 2014

. IAF, Tab 16, S ubtab 4b at 1. ¶5 The a ppellant filed a timely ap peal of her removal and raised affirmative defense s alleging harmful error and retaliation for engaging in protecte d activity. IAF, Tab 1, Tab 28 at 2. Following a hearing, the administrative judge affirmed the agency’s decision to remove the appellant for unacceptable performance on Critical E lement 2 of her Budget Analyst position. IAF, Tab 29, Initial Decision (ID) at 1

. The administr ative judge further found that t he appellant failed to prove her affir mative defense of reprisal. ID at 14. Specifically, the administrative judge found that the appellant proved that she engaged in protected activity by filing a grievance, that the individuals taking the removal action knew4

of her grievance, 2 and that her removal could have been reprisal for protected activity but that she failed to prove that there was a nexus between her removal and filing her grievance or engaging in any other protected activity. ID at 12

- 14

. The administrative judge did not address t he appellant’s remaining affirmative defense of harmful error. ¶6 The appellant has filed a petition for review arguing that the agency failed to consider certain evidence regarding her retaliation claim. Petition for Review (PFR) File, Tab 1. She also reasserts her allegation that the agency committed harmful error by violating the colle ctive bargaining agreement . The agency filed a response in opposition to her petition. PFR File, Tab 3. ¶7 The failure to demonstrate acceptable performance under a singl e critical element will support removal under chapter 43. Towne v. Department of the Air
Force , 120 M.S.P.R. 239 , ¶ 29 n.12 (2013). On review, the appellant does not challenge the administrative judge’s findings that the agency proved by substantial evidence 3 that: (1) it communicated to the appellant her performance standards and the critical elements of her position; (2) its performance standards were valid; (3) it notified the appellant of her unacceptable performance and provided her with an opportunity to improve; and (4) the appellant’s performance in Critical Element 2 was not successful

. S ee id ., ¶ 6 ; see also ID at 3

- 13 . We therefore AFFIRM those findings.

2 The administrative judge did not find that the proposing and deciding official s were aware of the appellant’s Board appeal, although both were aware of her grievance. ID at 13.
3 Substantial evidence is the “degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to suppo rt a conclusion, even though other reasonable persons might disagree.” Towne , 120 M.S.P.R. 239 , ¶ 6 (citing 5 C.F.R. § 1201.56 (c)(1) ). Substantial evidence is a lesser standard of proof than preponderance of the evidence and, to meet this standard, the agency’ s evidence need not be more persuasive than that of the appellant. Id.5

¶8 Regarding the appellant’s retaliation

- for

- protected

- activity affirmative
defense , the appellant itemizes some of the evidence and arguments she made below and asserts that the administrative judge did not fully consider all of the evidence. PFR File, Tab 1 at 5

- 7; see IAF, Tab 21 at 7, 12, 14, Tab 23 at 5

- 6. The administrative judge’ s failure to mention all of the evidence of record does
not mean that s he did not consider it in reaching his decision. See Marques v. Department of Health & Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’ d , 776 F.2 d 1062 (Fed. Cir. 1985) (Table) . Moreover, the appellant has not identified any new evidence of record indicating that the admin istrative judge
erred by finding that she failed to prove her claim of retaliation. As such, the appellant’s arguments on review constitute mere disagreemen t with the administrative judge’ s explained findings on these issues , and w e discern no

reason to r eweigh the evidence or substitute our assessment of the record evidence for that of the administrative judge in this appeal. See ID at 3

- 15; see also 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 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 On review, t he appellant also reasserts the argument she made on appeal that the agency committed harmful error by violating the American Federation of Government Employees (AFGE) contract, Article 27, § 10, ¶¶ A

- C, concerning performance improvement plans. PFR File, Tab 1 at 4; I AF, Tab 12 at 2, Tab 23
at 1

- 2, Tab 27 at 4

- 5, 12 , Tab 28 at 1

- 2 . Specifically, she argues that the agency committed harmful error by placing her on a PIP under the same supervisor whom she previously charged with a “Prohibit [sic] Personnel Action along with Discrimination and using Retaliation Method in order to remove/fire her.” PFR File, Tab 1 at 4. The appellant argues, among other things, that her supervisor wanted her to fail and that her supervisor made up her mind “not to help or6

provide any type of training or corrective action,” which violated her agreement with the agenc y regarding the PIP. Id

. ¶10 H armful error under 5 U.S.C. § 7701 (c)(2)(A) cannot be presumed; an
agency ’s 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) ; see 5 C.F.R. § 1201.56 ( c)(3)

. The appellant has the burden of proving by preponderant evidence that the agency committed an error that harmed her substantive rights. See 5 C.F.R. § 1201.56 (c)(3)

. A procedural error that does not prejudice the appellant’s substantive rights provides no basis to overturn the agency’s action

. See generally Tate v. Department of the Interior , 4 M.S.P.R. 106 , 107 (1980). ¶11 Although t he administrative judge did not specifically address the appellant’s harmful error claim in the initial decision, we f ind that her failure to
do so i s not prejudicial err or and does not warrant reversing the initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). The administrative judge properly apprised t he appellant of her burden of proving her affirmative defense of harmful error, as well as the kind of evidence required to meet her burden. IAF, Tab 24 at 2, Tab 28 at 2. Because the parties had the opportunity to submit evidence and argument on this is sue, we MODIFY the initial decision to address it here. ¶12 T he union agreement that the agency allegedly violated , specifically AFGE contract, Article 27, § 10, ¶¶ A

- C, does not require the agency to reassign the appellant to a new supervisor during a PIP

. See I AF, Tab 27 at 12

. We therefore find no merit in the appellant’s argument that the agency’s failure to assign her to

a different supervisor violated the union contract and constituted harmful error.
See PFR File, Tab 1 at 4. AFGE contract, Article 27, § 10, ¶¶ A

- C, requires, among other things, that the agency afford the employee a reasonable opportunity of at least 90 calendar days to improve her performance and provide other7

assistance as appropriate, such as training and bi weekly feedback

. IAF, Tab 27

at 12. In t he parties’ June 6, 2013 agreement pla n , the agency agreed to provide the appellant with assistance during her second 90

- day PIP, which included training and bi weekly feedback

. Id ., Tab 17, Subtab 4i at 3. ¶13 On review, the appellant rea sserts her argument that the ag ency did not provide the agreed

- upon training , and she also argues that the administrative judge misconstrued the testimony of her union representative concerning this issue. PFR File, Tab 1 at 6; IAF, Tab 28 at 1

- 2

. We fin d that the administrative judge accurately summarized the witness ’s testimony and evidence confirming, among other things, that the appellant’s supervisor met with her during the PIP on
a bi weekly basis, provided written feedback on her work, and showed he r the steps used to complete previously prepared cases. ID at 6, 9

- 12; IAF, Tab 16 , Subtab 4g; Hearing C ompact D isc (HCD) (testimony of A. Nicholas, A. Raymond, and the a ppellant). Contrary to the appellant’s arguments on review, the record supports the administrative judge’s finding that there is no merit in the appellant’s claim that she did not receive the requisite training during the PIP

. See HCD (t estimony of A. Nicholas , A. R aymond , and the appellant) ; see also ID
at 12. ¶14 Although the appellant d isagrees with the teaching method employed by her supervisor, she has not proven by preponderant evidence that the training she received during the PIP violated any agency rule, regulation, or collective bargaining agreement ; or that the alleged procedural violation was harmful and affected the outcome of the agency’s decision. See generally 5 U.S.C. § 7701 (c)(2)(A) ; Diaz v. Department of the Air Force , 63 F.3d 1107 , 1109 (Fed. Cir. 1995) ; Martin v. Federal Aviation Administration , 795 F.2d 995 , 999 (Fed. Cir. 1986) . We therefore MODIFY the initial decision to find that the appellant failed to prove her affirmative defense of harmful error.8

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS The initial decision, as supplemented by this Fin al Order, constitutes the
Board’ s final decision in this matter. 5 C.F.R. § 1201.113 . You have the right to

re quest the United States Court of Appeals for the Federal Circuit to review this final decision. You must submit your request to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 20439 The court must receive your request for review no later than 60 calendar days after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose t o file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sec tions of the United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm

. Additional information is available at the court's website, www.ca fc.uscourts.gov

. Of particular relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is contained within the court's Rules of Practice , and Forms 5, 6, and 11. If you are interested in securing pro bono representation for your court appeal, you may visit our website at http://www.mspb.gov/probono for a list of attorneys who have expressed interest in providing pro bono representation for Merit Systems Protection Board appellants befor e the court. The Merit Systems9

Protection Board ne ither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board