N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

MILOS PUACA,
Petitioner

v.

DEPARTMENT OF VETERA NS AFFAIRS, Respondent

______________________

2014

- 3173

______________________

Petition for review of the Merit Systems Protection
Board in No. CH

- 0432

- 12

- 0595 -I- 1.

______________________

Decided: June 8, 2015

______________________

M ILOS P UACA , Chicago, IL, pro se.

M EEN G EU O H , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, for respondent. Also represented by J OYCE R.
B RANDA

, R OBERT E. K IRSCHMAN

, J R

., S TEVEN J.
G ILLINGHAM

.

______________________

Before N EWMAN

, L OURIE

, and C HEN

, Circuit Judges.PUACA v. DVA 2

P ER C URIAM

The Department of Veterans Affairs (VA) removed M ilos Puaca (Mr. Puaca) from his position as a Veterans Service Representative with the Veterans Benefit Admi nistration in Chicago, Illinois as a result of his failure to maintain a satisfactory performance quality rating. Mr.
Puaca now appeal s the decision of the Merit Systems Protection Board (Board) affirm ing his removal . We
affirm.

B ACKGROUND

Mr. Puaca began his employment as a V eterans Se rvice Represent ative (VSR) i n September 2009

. A VS R is tasked with obtaining information from Illinois veterans, widows, and dependents to substantiate claims for ben efits. The VA requires its VSRs to maintain an 85% acc uracy rate (performance quality rating). The VA calculates this performance quality rating by reviewing randomly
selected actions completed by the VSR. After an error is identified, the VSR may rebut the error and, if successful,
that error will be removed from the calculation. The VA
then uses the nu mber of errors to calculate the VSRs accuracy rate or “performance quality rating.” Mindful of the learning curve for new VSRs, however, the VA does not impose this performance standard during a VSR’s first year of employment. Consistent with this practi ce, Mr. Puaca was not subject to the 85% performance quality rating requirement until October 2010. In addition, the VA provided Mr. Puaca with extensive training.

A fter Mr. Puaca became subject to the performance standards, the VA recognized that Mr. P uaca was stru ggling to maintain adequate performance quality ratings. By March 2011, the VA placed Mr. Puaca on a 90

- day performance improvement plan. After this 90

- day period, Mr. Puaca’s performance quality rating had improve d from approximately 40% to nearly 92%. The VA informed him, however

, that he needed to maintain an acceptablePUACA v. DVA 3

performance quality rating for one year after the date he was placed on the performance improvement plan. Mr.
Puaca was further informed that fa ilure to maintain this performance quality rating could result in him being subject to removal from his position.

Despite additional training, a random sampling of the claims on which Mr. Puaca had worked revealed a pe rformance quality rating below 85% . M r. Puaca was given an opportunity to rebut the errors that the VA cited and
was also notified that these errors could lead to his r emoval. Mr. Puaca failed to submit any such rebuttal. A s a result, on April 16, 2012, the VA proposed Mr. Puaca’s
removal f rom his position for failing to meet a minimally acceptable performance quality rating. On June 3, 2012, Mr. Puaca was removed from his position

. Mr. Puaca timely appealed and, after a hearing, an Administrative Judge (AJ) affirmed the removal. Ther eafte r, Mr. Puaca petitioned for review of the AJ’s decision by the Board. The Board denied the petition for review
and affirmed the AJ’s decision. Mr. Puaca then appealed
to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

D ISCUSSION

Our revie w of a Board decision is limited. A decision of the Board must be affirmed unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation havin g been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); Dickey v. Office of Personnel Mgmt. , 419 F.3d 1336, 1339 (Fed. Cir. 2005). Under the substantial ev idence standard, we will reverse the Board’s decision only “if it is not supported by such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Haebe v. Dep’t of Justice , 288 F.3d 1288, 1298 (Fed. Cir. 2002) (internal quotation marks omitted).PUACA v. DVA 4

Mr. Puaca raises several factual arguments

. None of these arguments, however, establish that the Board’s decision is unsupported by substantial evidence.

Mr. Puaca first argues that the VA failed to show that he was removed pursuant to an OPM

- approved performance standard, as required by 5 U.S.C. § 4304. The Board properly rejected this argument after the VA submitted a letter from OPM indicating OPM’s approval of VA’s performance appraisal system. In fact, Mr. Puaca

even previously conceded this point. Mr. Puaca now argues, for the first time on appeal, that OPM’s approval of the VA system expired in 1993 . Because Mr. Puaca did not raise this argument before the Board, it is not prope rly before us. See Bosley v. Merit Sys. Prot. Bd. , 162 F.3d 665, 668 (Fed. Cir. 1998) (“A party in an MSPB procee ding must raise an issue before the administrative judge if the issue is to be preserved for review in this court.”).
Even if we could consider th e argument, however, the
document to which Mr. Puaca cites d oes not mention the VA or any revocation of OPM’s approval of the VA’s performance appraisal system.

Second, Mr. Puaca r aises factual issues relating to the manner in which the VA evaluated his performance. Mr.
Puaca asserts that the VA improperly selected the sa mples of his work to review. In addition, he contends that the VA denied him an opportunity to rebut the purported errors in his work. The Board rejected each of these
assertions based on testimony presented by the VA . The
Board first credited VA testimony indicating that it randomly selected the samples using a computerized tracking system. The Board also credited VA testimony that Mr. Puaca’s superiors had informed him of the errors and advised him of his ability to submit rebuttals. See
Ki ng v. Dep’t of Health & Human Servs. , 133 F.3d 1450, 1453 (Fed. Cir. 1990) (“[A]n evaluation of witness credibi lity is within the discretion of the Board and . . . , in ge n-PUACA v. DVA 5

eral, such evaluations are virtually unreviewable on appeal.” (internal quotation marks omitted)).

Third , Mr. P u aca argues that the VA provided insufficient training to facilitate improvement of his perfo rmance. The Board affirmed the AJ’s rejection of this argument. Specifically, the AJ found that Mr. Puaca’s
successful completion of the performance improvement plan demonstrated that he was capable of satisfactory performance. The AJ also rejected this argument in light of credible testimony from Mr. Puaca’s trainer that he
received at least 272 hours of classroom traini ng in his first year of employment and an additional ninety

- eight
hours of training in his second year.

Fourth, Mr. Puaca contends that the Board erred by failing to give proper weight to his medical conditions during the relevant timeframe. The Board reviewed the record and noted that Mr. Puaca never requested add itional leave while he was recovering from these medical
conditions

. The Board also recognized that nothing in the
record indicated that Mr. Puaca’s medical condition affected his ability to s atisfactorily perform his work
duties.

Finally, Mr. Puaca argues that the tenth performance quality error that the VA identified was erroneously
included in the calculation of his performance quality rating because it occurred after the exp iration of the one

year period that began at the initiation of the performance im provement plan. Neither party disputes that, without this error, Mr. Puaca’s performance quality rating would not have fallen below 85%. Th is argument

, however, appears to be based on a misunderstanding o f the record. The VA placed Mr. Puaca on the 90

- day performance improvement plan on March 21, 2011. Therefore, the one

- year period ended, at the earliest, on March 20, 201 2. According to the record, the disputed
tenth error occurred on March 19, 2012, not on March 21,PUACA v. DVA 6

2012, as Mr. Puaca now contends. Thus, the Board co rrectly determined that this error was properly included in the VA’s calculation of Mr. Puaca’s performance quality rating.

In light of the foregoing, the record demonstr ates that the Board fully considered Mr. Puaca’s arguments and
that e ach of the Board’s determinations is supported by
substantial evidence. We have considered Mr. Puaca’s remaining arguments and find them without merit.

C ONCLUSION

We find no basis on whi ch to reverse the Board’s co nclusion and therefore affirm the Board’s decision sustai ning Mr. Puaca’s removal.

AFFIRMED