UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2010 MSPB 240 

Docket No. PH-0432-09-0413-I-1 

Cesar Lee, 

Appellant, 

v. 

Environmental Protection Agency, 

Agency. 

December 9, 2010 

Frank Finch, III, Philadelphia, Pennsylvania, for the appellant. 

Gregory J. Smith, Philadelphia, Pennsylvania, for the agency. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Anne M. Wagner, Vice Chairman 

Mary M. Rose, Member 

OPINION AND ORDER

¶1 The appellant has petitioned for review of the initial decision that affirmed 

his removal for unacceptable performance pursuant to 5 U.S.C. chapter 43. For 

the reasons set forth below, we GRANT the appellant’s petition and AFFIRM the 

initial decision as MODIFIED, still AFFIRMING the agency’s removal action. 

BACKGROUND

¶2 The appellant was formerly employed as an Environmental Engineer, 

GS-12, with the Office of Federal Facility Remediation & Site Assessment in the 

Hazardous Site Cleanup Division for Region III. Initial Appeal File (IAF), Tab 4, 
2

Subtab 4a at 1. At all times relevant to this appeal, he was assigned to serve as 

regional Docket Coordinator, 1

 and his performance was evaluated by Kathleen 

Anderson, then Acting Chief of the Site Assessment & Non-NPL Federal 

Facilities (SANF) Branch. Id., Subtabs 4h, 4u, 4v. On February 21, 2008, 

Anderson issued the appellant a summary rating of unsatisfactory for the 

performance evaluation period ending February 8, 2008. Id., Subtab 4u at 2-10. 

Effective February 9, 2008, the agency placed the appellant on a new 

performance plan. Id., Subtab 4h. By memorandum dated July 30, 2008, 

Anderson informed the appellant that his performance was unsatisfactory on the 

critical element of Program/Project Management and that he would be placed on a 

Performance Improvement Plan (PIP) for a period of 60 days, during which time 

he was to complete several itemized assignments. Id., Subtab 4s. The PIP ended 

 

1

 Section 120(c) of the Comprehensive Environmental Response, Compensation, and 

Liability Act of 1980 (CERCLA or Superfund), 42 U.S.C. § 9620(c), requires the 

Environmental Protection Agency (EPA) to establish a Federal Agency Hazardous 

Waste Compliance Docket (Docket), which contains information reported to the EPA by 

federal facilities that manage hazardous waste or from which hazardous substances, 

pollutants, or contaminants have been or may be released. The Docket is used to 

identify federal facilities that must be evaluated to determine if they pose a threat to 

public health or welfare and the environment and to provide a mechanism to make this 

information available to the public. Section 120(d) of CERCLA provides that for each 

facility listed on the Docket, the EPA must take steps to assure that a preliminary 

assessment is conducted within a reasonable time. Following the preliminary 

assessment—and, if warranted, a site inspection—the EPA evaluates the site under the 

Hazard Ranking System to determine whether the site scores sufficiently high to 

warrant listing on the National Priorities List (NPL). If the EPA determines that the 

facility or site does not pose a threat sufficient to warrant Superfund action, the EPA 

will typically designate the site status as No Further Remedial Action Planned 

(NFRAP). The EPA publishes regular updates to the Docket in the Federal Register, 

adding, deleting, or correcting entries as needed and tracking changes in NFRAP status. 

In compiling the updated Docket, the EPA compares and reconciles the current Docket 

with information obtained from several databases, including the Resource Conservation 

and Recovery Information System (RCRAInfo) and the primary Superfund database, the 

Comprehensive Environmental Response, Compensation, and Liability Information 

System (CERCLIS). See generally 73 Fed. Reg. 71644 (Nov. 25, 2008) (twenty-third 

Docket update); Docket Reference Manual (March 9, 2007 Interim Final), at IAF, Tab 

26, Subtab H; Hearing Transcript at 101-04 (Anderson). 
3

on September 30, 2008, and on October 10, 2008, Anderson issued a close-out 

memorandum, notifying the appellant that his performance on the critical element 

of Program/Project Management remained unsatisfactory. Id., Subtab 4g. By 

notice dated January 5, 2009, James J. Burke, Director, Hazardous Site Cleanup 

Division, proposed to remove the appellant for unacceptable performance. Id., 

Subtab 4f. The appellant provided a lengthy written response. Id., Subtab 4e. 

On March 27, 2009, James Newsom, Acting Deputy Regional Administrator, 

notified the appellant of his decision to remove him effective that same day. Id., 

Subtab 4b. 

¶3 The appellant filed a timely appeal, raising affirmative defenses of harmful 

procedural error and discrimination based on national origin (Chinese). IAF, 

Tabs 1, 27. During the proceedings below, the appellant moved to recuse the 

administrative judge, but the administrative judge denied that motion, as well as 

the appellant’s motion to certify the issue as an interlocutory appeal. IAF, 

Tabs 27, 34, 37, 39. Following a hearing, the administrative judge issued an 

initial decision affirming the removal action. IAF, Tab 43 (Initial Decision, 

Jan. 29, 2010). 

¶4 On petition for review, the appellant renews his objections to the following 

pre-hearing rulings and determinations: (1) denial of his first motion to compel 

discovery; (2) denial of his second motion to compel discovery; (3) denial of his 

motion to disqualify the administrative judge and subsequent motion for 

certification of interlocutory appeal; (4) denial of witnesses Timothy Mott, Helen 

Shannon, and Charlene Creamer; (5) denial of his motion in limine to exclude 

agency evidence; and (6) partial denial of his motion for subpoenas. Petition for 

Review File (PFR File), Tab 1 at 3-21. In addition, the appellant contends that 

the administrative judge erred in various findings of fact and conclusions of law. 

Specifically, the appellant argues that, contrary to the initial decision: (1) the 

agency was required to show, but failed to show, that it obtained approval from 

the Office of Personnel Management (OPM) for the performance appraisal system 
4

under which the appellant was rated and subsequent changes to that system; 

(2) the substantive performance standards were invalid and unreasonable; (3) the 

agency committed harmful error by removing him based in part on alleged 

unacceptable performance which took place more than 1 year prior to the 

proposal notice; (4) the agency committed harmful error in its implementation of 

the PIP; (5) his discrimination claim was supported by evidence, which he was 

denied the opportunity to obtain through discovery, that previous Docket 

Coordinators were not required to perform the same types of assignments; and 

(6) the record lacks substantial evidence that his performance during the PIP was 

unacceptable. Id. at 21-40. The agency has responded in opposition to the 

appellant’s petition. PFR File, Tab 3. 

ANALYSIS

Legal standard

¶5 To prevail in an appeal of a performance-based removal under chapter 43, 

the agency must establish by substantial evidence that: (1) OPM approved its 

performance appraisal system and any significant changes thereto; (2) the agency 

communicated to the appellant the performance standards and critical elements of 

his position; (3) the appellant’s performance standards are valid under 5 U.S.C. 

§ 4302(b)(1); (4) the agency warned the appellant of the inadequacies of his 

performance during the appraisal period and gave him a reasonable opportunity to 

demonstrate acceptable performance; and (5) the appellant’s performance 

remained unacceptable in one or more of the critical elements for which he was 

provided an opportunity to demonstrate acceptable performance. See 5 U.S.C. 

§§ 4302(b), 7701(c)(1)(A); Adamsen v. Department of Agriculture, 563 F.3d 

1326, 1331 (Fed. Cir.), modified by 571 F.3d 1363 (Fed. Cir. 2009); Gonzalez v. 

Department of Transportation, 109 M.S.P.R. 250, ¶ 6 (2008); DiPrizio v. 

Department of Transportation, 88 M.S.P.R. 73, ¶ 7 (2001); Johnson v. 

Department of the Interior, 87 M.S.P.R. 359, ¶ 6 (2000). Substantial evidence is 
5

the degree of relevant 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. 5 C.F.R. § 1201.56(c)(1). Ordinarily, the 

Board will presume that OPM has approved the agency’s performance appraisal 

system; however, if an appellant has alleged that there is reason to believe that 

OPM did not approve the agency’s performance appraisal system or significant 

changes to a previously approved system, the Board may require the agency to 

submit evidence of such approval. Adamsen, 563 F.3d at 1330-31; Daigle v. 

Department of Veterans Affairs, 84 M.S.P.R. 625, ¶ 12 (1999). 

¶6 If the action is supported by substantial evidence, the Board will sustain 

the action unless the appellant shows by a preponderance of the evidence that: 

(1) the agency committed harmful procedural error in reaching its decision; 

(2) the decision was based on a prohibited personnel practice under 5 U.S.C. 

§ 2302(b); or (3) the decision was not in accordance with law. 5 U.S.C. 

§ 7701(c); 5 C.F.R. § 1201.56(a)(2)(iii), (b). A preponderance of the evidence is 

that degree of relevant evidence that a reasonable person, considering the record 

as a whole, would accept as sufficient to find that a contested fact is more likely 

to be true than untrue. 5 C.F.R. § 1201.56(c)(2). The Board has no authority to 

mitigate a removal taken under chapter 43. Lisiecki v. Merit Systems Protection 

Board, 769 F.2d 1558, 1566-67 (Fed. Cir. 1985). 

The administrative judge’s prehearing rulings do not warrant reversal.

¶7 The Board will not reverse an administrative judge's rulings on discovery 

matters absent an abuse of discretion. Wagner v. Environmental Protection 

Agency, 54 M.S.P.R. 447, 452 (1992), aff'd, 996 F.2d 1236 (Fed. Cir. 1993) 

(Table). Moreover, an administrative judge's procedural error is of no legal 

consequence unless it is shown to have adversely affected a party's substantive 

rights. Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981). For the 

reasons discussed below, we find the appellant has not shown that the 
6

administrative judge committed an abuse of discretion or that she committed a 

procedural error that prejudiced his appeal. 

First Motion to Compel Discovery 

¶8 On June 9, 2009, during the initial discovery period, the parties executed 

an Agreement to Mediate. IAF, Tab 10. The parties mutually stipulated that the 

appellant’s deadline for filing a motion to compel discovery would be extended to 

3 days following the conclusion of mediation efforts. Id. The mediator 

conducted a mediation on September 23, 2009, but the parties were unable to 

reach settlement. IAF, Tab 12. By order dated September 25, 2009, she 

indicated that the parties were unable to reach settlement and that she was 

terminating the mediation and returning the appeal to the presiding administrative 

judge. Id. Consequently, the deadline for the appellant to file a motion to 

compel discovery was September 28, 2009. 

¶9 On September 28, 2009, the appellant filed a timely motion to compel the 

agency to produce two employees for depositions: Timothy Mott, the agency’s 

National Docket Coordinator, and Helen Shannon, the Docket Coordinator for 

Region II. IAF, Tab 13. The appellant argued that the duties of a regional 

Docket Coordinator are the same from region to region and that Mott and 

Shannon were better suited than Anderson to provide expert testimony as to what 

those duties are. Id. In support of his claim, the appellant cited the deposition 

testimony of James Hargett, the appellant’s temporary successor as Docket 

Coordinator, who indicated that Anderson was not in a position to be of expert 

assistance in connection with that work. See id., Ex. E. With regard to Mott, the 

appellant also asserted that, as National Docket Coordinator, he is the work 

assignment manager for the regional Docket Coordinators, and the person to 

whom the regional Docket Coordinators report. In support of that claim, he cited 

the deposition testimony of Anderson, who indicated that Mott was the work 

assignment manager “for the national contract.” See id., Ex. D. 
7

¶10 In response to the appellant’s motion, the agency stated that regional 

Docket Coordinators do not report to the National Docket Coordinator but rather 

to the Branch Chief for the region and branch where they work. IAF, Tab 14. It 

was Anderson who assigned the appellant work, set his performance standards, 

and appraised the quality of his performance. Id. The agency provided a 

declaration by Mott, who stated under penalty of perjury that “[a]t no time in my 

position as National Docket Coordinator have I performed any supervisory duties 

or had any supervisory authority over the Appellant or any other Regional Docket 

Coordinator, including the assignment of work or assessment of performance.” 

Id., Ex. A. Additionally, there was no indication that Shannon was similarly 

situated to the appellant such that she could have been considered a valid 

comparator. See Spahn v. Department of Justice, 93 M.S.P.R. 195, ¶ 13 (2003) 

(to be deemed similarly situated, all relevant aspects of the appellant’s 

employment situation must be “nearly identical” to those of the comparator 

employee). The administrative judge did not abuse her discretion in finding that 

deposition of Mott and Shannon would not have provided information reasonably 

calculated to lead to the discovery of admissible evidence. See IAF, Tab 18; 5 

C.F.R. § 1201.72(a). 

Second Motion to Compel Discovery 

¶11 The appellant filed his second motion to compel on October 15, 2009, more 

than 2 weeks after the deadline for filing such a motion had passed. IAF, Tab 16. 

He acknowledged that the deadline had passed but noted that the agency had filed 

a motion for summary judgment with respect to his discrimination claim on 

October 6, 2009. Id.; see IAF, Tab 15. The appellant argued that the agency’s 

motion raised the possibility, not contemplated at the time the parties stipulated 

to the deadline for filing discovery motions, that the administrative judge would 

decide the discrimination claim without a hearing. Hence, the appellant 

contended, the agency should now be required to produce documentary evidence 

on the issue in the event he was denied the opportunity to obtain that information 
8

through witness examination and review of documents produced in response to 

subpoenas. IAF, Tab 16. In particular, the appellant requested that the 

administrative judge compel the agency to provide information concerning the 

work assignments and performance standards and appraisals for five employees 

who had previously served as Region III Docket Coordinator. Id. 

¶12 On October 20, 2009, the administrative judge denied the agency’s motion 

for summary judgment, ruling that the appellant would have the opportunity at 

the hearing to present relevant evidence concerning his discrimination claim. 

IAF, Tab 20. Because that ruling rendered moot the appellant’s rationale for 

extending the deadline for filing motions to compel, the administrative judge 

correctly treated the appellant’s second motion to compel as untimely filed. IAF, 

Tab 21. Moreover, as the administrative judge noted, the appellant did not supply 

complete copies of his discovery requests and the agency’s responses to those 

requests, as required under 5 C.F.R. § 1201.73(e)(1). See 5 C.F.R. § 1201.74(a) 

(an administrative judge may deny a motion to compel discovery if a party fails 

to comply with the requirements of 5 C.F.R. § 1201.73(e)(1)). 

Motion for Issuance of Subpoenas 

¶13 On November 13, 2009, the appellant filed a motion requesting the 

administrative judge to issue subpoenas to eight individuals. IAF, Tab 25. With 

the exception of proposing official James Burke, who had by then retired, each of 

the individuals in question was a current agency employee. Id. The appellant 

also requested a subpoena duces tecum for Human Resources employee Rose 

Ashnant, directing her to produce documents relating to the issue of OPM 

approval of the agency’s performance appraisal system, as well as the documents 

which the appellant had previously requested in his second motion to compel. Id. 

In her order and summary of the November 16, 2009 prehearing conference, the 

administrative judge denied the appellant’s motion. IAF, Tab 27. 

¶14 We find that the administrative judge did not abuse her discretion in that 

ruling. Subpoenas are not ordinarily required to obtain the appearance of Federal 
9

employees as witnesses. 5 C.F.R. §§ 1201.33, 1201.81(a). With regard to Burke, 

no subpoena was necessary because the administrative judge denied the 

appellant’s request to call him as a witness, IAF, Tab 27 at 4-5, a ruling which 

the appellant no longer contests. The appellant’s request for a subpoena duces 

tecum of Ashnant was an attempt to compel written discovery after the deadline 

for filing motions to compel had passed, and the administrative judge correctly 

treated it as such. Id. at 6. In any event, the administrative judge ordered the 

agency to produce several of the documents listed in the appellant’s request for a 

subpoena duces tecum, in particular, those documents pertinent to the issue of 

OPM approval of the agency’s performance appraisal system. Id. 

Rulings on Witnesses 

¶15 In his prehearing submission, the appellant requested eleven witnesses, 

including himself. IAF, Tab 26 at 18-19. At the November 16, 2009 prehearing 

conference, the administrative judge advised the appellant that she did not need to 

hear from Burke, the proposing official. IAF, Tab 27 at 4. In addition, she 

sustained the agency’s objections to proposed witnesses Charlene Creamer, 

Timothy Mott, Helen Shannon, and James Hargett based on relevance. Id. at 5. 

The administrative judge also sustained the agency’s objection to proposed 

witness Steve Johnson, but indicated that she would entertain a request to have 

him testify on rebuttal. Id. The appellant objected to the administrative judge’s 

rulings on all six excluded witnesses, and submitted an offer of proof with respect 

to Hargett, Mott, Shannon, and Creamer. Id.; IAF, Tab 31. After reviewing the 

offer of proof, the administrative judge granted the appellant’s request to call 

Hargett, and affirmed her previous ruling with regard to Creamer. IAF, Tab 36. 

The administrative judge further stated that she would entertain an appropriate 

request to call Mott and Shannon on rebuttal. Id. On petition for review, the 

appellant appears to have abandoned his objections with regard to Johnson and 

Burke, but he argues that the administrative judge abused her discretion with 

regard to Mott, Shannon, and Creamer. PFR File, Tab 1 at 13-15. 
10

¶16 An administrative judge has wide discretion under 5 C.F.R. 

§ 1201.41(b)(8), (10) to exclude witnesses where it has not been shown that their 

testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal 

Service, 27 M.S.P.R. 322, 325 (1985). We discern no abuse of discretion in this 

case. As discussed above, the administrative judge had already properly denied 

the appellant’s motion to compel depositions of Mott and Shannon, based in part 

on the declaration of Mott, who stated that he had no part in supervising regional 

Docket Coordinators or in assigning or evaluating their work. IAF, Tabs 14, 18. 

The appellant now contends that, because he was not permitted to depose Mott or 

call him as a witness, he was “deprived of the opportunity to explore who 

actually authored the Mott declaration and to challenge or seek clarification of 

the statements contained therein.” PFR File, Tab 1 at 14. The complaint lacks 

merit, because the appellant was not in fact deprived of that opportunity. The 

administrative judge informed the appellant that she would entertain a request at 

the hearing to call Mott or Shannon as a rebuttal witness, and the appellant failed 

to make such a request. IAF, Tab 34. 

¶17 The administrative judge also properly exercised her discretion in 

excluding Creamer, who served as the appellant’s acting supervisor from January 

or February 2007 until June 2007, while Anderson was on detail. The appellant 

stated that Creamer would testify on the following issues: (1) the apparent 

circumvention of merit selection procedures by Sokolowski in order to appoint 

Anderson as the appellant’s immediate supervisor; (2) the agency’s handling of 

Creamer’s positive 2007 mid-year assessment of the appellant’s performance; and 

(3) her disagreement with Anderson’s assessment of the appellant’s performance. 

IAF, Tab 26 at 13-16, 19; Tab 31 at 4 & Ex. B; see also PFR File, Tab 1 at 14-15. 

However, the period in question here, i.e. the appellant’s performance from July 

30 to September 30, 2008, was sufficiently long after Creamer’s stint as the 

appellant’s acting supervisor to render his testimony with regard to the 
11

appellant’s performance during his PIP less than probative. Consequently, the 

administrative judge did not abuse her discretion in excluding Creamer. 

Motion to Disqualify the Administrative Judge/Motion for Certification of 

an Interlocutory Appeal 

¶18 Shortly after the prehearing conference, on November 18, 2009, the 

appellant filed a motion to disqualify the administrative judge under 5 C.F.R. 

§ 1201.42(b). IAF, Tab 28. Specifically, the appellant argued that the 

administrative judge and agency counsel, Gregory J. Smith, were acquainted as 

former colleagues in the legal department of the U.S. Postal Service, and that this 

association, in combination with her adverse rulings, would cause a reasonable 

person to question her impartiality. Id. The agency responded, and the 

administrative judge denied the appellant’s motion by order dated December 2, 

2009. IAF, Tabs 33, 34. The appellant subsequently moved for the 

administrative judge to certify an interlocutory appeal of her ruling, pursuant to 

5 C.F.R. § 1201.43(c), and the administrative judge also denied that motion. IAF, 

Tabs 37, 39. 

¶19 The Board’s regulations provide that a party may file a motion asking the 

administrative judge to withdraw “on the basis of personal bias or other 

disqualification.” 5 C.F.R. § 1201.42(b). This case is unusual in that the 

appellant did not allege in his motion that the administrative judge was biased but 

rather that she was otherwise disqualified. IAF, Tab 28. The appellant contends 

that in denying his recusal motion, the administrative judge did not correctly 

apply the standard appropriate for motions to disqualify on grounds other than 

bias. PFR File, Tab 1 at 10-13. 

¶20 We agree. In determining whether an administrative judge should be 

disqualified on grounds other than bias, the Board’s policy is to follow the 

standard set out at 28 U.S.C. § 455(a): 

Under 28 U.S.C. § 455(a), “[a]ny justice, judge, or magistrate of the 

United States shall disqualify himself in any proceeding in which his 
12

impartiality might reasonably be questioned.” Although the Board is 

not bound by section 455(a), inasmuch as the Board is not a court, 

the Board has held that it “see[s] no reason not to look to the rule 

and case law arising from 28 U.S.C. § 455 where relevant. . . .” The 

goal of section 455(a) is to avoid even the appearance of partiality. 

Thus, the test applied is not whether a judge is in fact biased or 

prejudiced, but whether a judge’s impartiality might reasonably be 

questioned. In enacting section 455(a), Congress created an 

objective standard under which disqualification of a judge is required 

when a reasonable person, knowing all the facts, would question the 

judge’s impartiality. In applying this standard, it is critically 

important to identify the facts that might reasonably cause an 

objective observer to question the judge’s impartiality. 

Shoaf v. Department of Agriculture, 97 M.S.P.R. 68, ¶ 7 (2004) (internal citations 

omitted).2

 

¶21 In denying the recusal motion, the administrative judge correctly took into 

account that the appeal does not involve the Postal Service, and that there was a 

lack of temporal proximity with her professional association with Mr. Smith. 

IAF, Tab 34. However, she also relied in part on factors unrelated to the 

“appearance of partiality” standard: 

The undersigned has been an administrative judge of the [Board] 

since April 2, 2006. After her appointment, it was determined by the 

Board’s ethics counsel that she should not preside over Postal 

Service cases for one year. Since that one year moratorium expired, 

she has presided over numerous Postal Service cases, including 

appeals that have proceeded to a hearing and cases in which former 

colleagues have represented the Postal Service. 

It is further noted that in addition to former colleagues, the 

undersigned administrative judge routinely presides over appeals in 

 

2 We note that in Greenberg v. Board of Governors of Federal Reserve System, 

968 F.2d 164, 167 (2d Cir. 1992), the U.S. Court of Appeals for the Second Circuit held 

that the “mere appearance of impropriety” standard of 28 U.S.C. § 455(a) does not 

apply to administrative law judges. However, the court based its holding on the fact 

that administrative law judges “are employed by the agency whose actions they 

review,” and consequently they “would be forced to recuse themselves in every case.” 

Id. That rationale does not apply to the Board’s administrative judges, who are not 

employed by the agencies whose actions they review. 
13

which former adversaries . . . are representing one of the litigants. 

Likewise, former colleagues, adversaries and clients often are named 

as and appear as witnesses in cases handled by Judge Svendsen. To 

expect her to recuse herself in each and every one of these matters 

would be unreasonable and unduly burdensome to the Board and 

other administrative judges in the Northeastern Regional Office. 

Id. For purposes of ruling on the motion, it was not pertinent that the 

administrative judge had complied with the instructions of the Board’s ethics 

counsel or that she did not have a practice of recusing herself in appeals where 

former colleagues or adversaries represented one of the parties. Nor was the 

convenience of other administrative judges or the Board as a whole a relevant 

consideration. Under Shoaf, the question before the administrative judge was 

simply whether the facts were such that a reasonable person in possession of the 

relevant facts would question her impartiality. 

¶22 Nevertheless, we agree with the administrative judge that a reasonable, 

objective observer would not question her impartiality based on the unremarkable 

fact that she and the agency representative had been coworkers years before at an 

agency that is not a party to this appeal. We further note that, even while 

correctly denying the appellant’s second motion to compel and motion for 

subpoenas, the administrative judge displayed evenhandedness in ordering the 

agency to produce much of the information the appellant requested. See IAF, 

Tabs 21, 27. Under these circumstances, the administrative judge did not abuse 

her discretion in denying the appellant’s recusal motion. Indeed, a judge “is as 

much obligated not to recuse himself when it is not called for as he is obliged to 

when he is.” Washington v. Department of the Interior, 81 M.S.P.R. 101, ¶ 15 

(1999) (quoting In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 

(2d Cir. 1988)). 

¶23 We further find that the administrative judge did not abuse her discretion in 

denying the appellant’s motion to certify the issue as an interlocutory appeal 

pursuant to 5 C.F.R. § 1201.42(c). Our regulations provide that an administrative 
14

judge will certify a ruling for review only if, inter alia, the ruling “involves an 

important question of law or policy about which there is substantial ground for 

difference of opinion.” 5 C.F.R. § 1201.92(a). The denial of the appellant’s 

recusal motion does not involve an important question of law or policy, as the 

Board has already decided the standard it will apply in determining whether an 

administrative judge should be disqualified on grounds other than bias. See 

Shoaf, 97 M.S.P.R. 68, ¶ 7; see also Keefer v. Department of Agriculture, 

92 M.S.P.R. 476, ¶ 7 (2002) (finding an administrative judge acted within his 

discretion in declining to certify a ruling on a recusal motion based on “other 

disqualification” as an interlocutory appeal because, on its face, the issue did not 

involve an important question of policy or law). 

Denial of the Motion in Limine to Exclude Agency Evidence 

¶24 In his motion in limine, filed December 3, 2009, the appellant requested 

that the administrative judge bar the agency from introducing any documents or 

testimony regarding his performance. IAF, Tab 35. The appellant based his 

motion on the agency’s alleged failure to produce adequate evidence that OPM 

had approved the performance appraisal system under which his performance was 

rated, or that OPM had approved the February 9, 2008 changes to his 

performance standards. Id. It is true that, in the absence of OPM approval, a 

chapter 43 action must be reversed regardless of the appellant’s performance. 

See Cole v. Internal Revenue Service, 25 M.S.P.R. 564, 565 n.* (1985) (the 

harmful error doctrine does not apply to the issue of OPM approval of an 

agency’s performance appraisal plan). However, as discussed below, the agency 

in fact provided all the evidence necessary to meet its burden of proof with 

respect to OPM approval of its performance appraisal system, and the record does 

not show that the agency made significant alterations to that system. 

Furthermore, changes to an employee’s performance standards do not require 

OPM approval. Adamsen, 571 F.3d at 1363. Accordingly, we find that the 
15

administrative judge did not abuse her discretion in denying the appellant’s 

motion in limine. 

The administrative judge’s findings of fact and conclusions of law do not provide 

a basis for reversal of the initial decision.

OPM approval of the performance appraisal system 

¶25 Because the appellant alleged below that there was reason to doubt whether 

OPM approved the performance appraisal system under which he was rated, the 

burden was on the agency to produce evidence of OPM approval. See Adamsen, 

563 F.3d at 1330-21; Daigle, 84 M.S.P.R. 625, ¶ 12. The agency initially 

submitted evidence of OPM approval in the form of a letter from OPM, dated 

March 3, 2005, granting the agency’s January 27, 2005 request for approval of its 

performance appraisal system, and a copy of the approval request itself, including 

a completed OPM Form 1631 (Performance Appraisal System Description) and a 

three-page attachment thereto. IAF, Tab 4, Subtab 4z. Nevertheless, the 

administrative judge proceeded to issue multiple orders directing the agency to 

produce evidence that OPM had approved the pertinent performance appraisal 

system. IAF, Tabs 21, 27 at 6. In response to the first such order, the agency 

complied by resubmitting the aforementioned documents. IAF, Tab 24 at 17-22. 

In response to the second order, the agency provided a declaration by an OPM 

Human Capital Officer, Jodi Guss, who stated under penalty of perjury that, 

“[a]fter a diligent search and upon information and belief,” the documents which 

the agency had submitted “comprise the entire record in the possession of OPM in 

connection with the EPA’s January 27, 2005 request and subsequent approval of 

its Performance Appraisal System.” IAF, Tab 38; see also IAF, Tab 32. 

¶26 On petition for review, the appellant argues that the agency did not meet its 

burden of proof because it failed to establish that he was covered by the same 

performance appraisal system that OPM approved on March 3, 2005. PFR File, 

Tab 1 at 22. The appellant further contends that the agency made changes to its 

performance appraisal system in February 2008, by moving from a 3-tiered rating 
16

system to a 5-tiered system and shortening his appraisal period, and failed to 

show that OPM approved those changes. Id. at 22-25.3

 Both of these arguments 

are without merit. 

¶27 First, OPM indicated in its March 3, 2005 approval letter that the approved 

performance appraisal system applies to “all agency non-Senior Executive 

Service employees other than those excluded by 5 U.S.C. § 4301(2) or excepted 

service employees excluded by OPM regulation.” IAF, Tab 4, Subtab 4z. The 

appellant was in the competitive service, not the Senior Executive Service or 

excepted service, and was therefore covered by the appraisal system. See id., 

Subtab 4a. Furthermore, there is nothing in the record to suggest that the 

appraisal system OPM approved on March 3, 2005, was no longer in effect when 

the appellant’s performance was rated as unsatisfactory. We note that, effective 

August 1, 2007, the agency established a Performance Appraisal and Recognition 

System” (PARS) for the appellant’s bargaining unit, pursuant to Article 34 of the 

collective bargaining agreement between the agency and the American Federation 

of Government Employees. IAF, Tab 4, Subtab 4w; IAF, Tab 42. Despite its 

name, however, PARS was not a new performance appraisal system requiring 

OPM approval but rather an appraisal program created under the agency-wide 

appraisal system approved on March 3, 2005. See 5 C.F.R. § 430.203 (defining 

“appraisal program” as “the specific procedures and requirements established 

under the policies and parameters of an agency appraisal system”); IAF, Tab 4, 

Subtab 4z at 5 (setting forth criteria and procedures for establishing separate 

appraisal programs). In the absence of any evidence that the agency replaced the 

 

3

 In the same section of his petition, the appellant also objects that Anderson imposed a 

PIP without first placing him on a Performance Assistance Plan (PAP), which, 

according to the appellant, was required under the applicable collective bargaining 

agreement. PFR File, Tab 1 at 22-24. This complaint is not relevant to the issue of 

OPM approval but rather appears to constitute a claim of harmful error, which we will 

address below. 
17

appraisal system OPM approved on March 3, 2005, we find that the agency has 

shown by substantial evidence that OPM approved the appraisal system under 

which the appellant was rated. Furthermore, contrary to the appellant’s assertions 

below, the agency submitted the complete text of that appraisal system.4

¶28 Second, the record does not indicate that the agency significantly altered its 

OPM-approved performance appraisal system in February 2008 or at any other 

time prior to the appellant’s removal. Although the agency made changes to the 

appellant’s performance plan in February 2008, those changes do not evidence an 

alteration of the underlying appraisal system, much less a significant alteration of 

the appraisal system requiring OPM approval. The appraisal system which OPM 

approved on March 3, 2005, provides for performance plans with a minimum of 

two and a maximum of five appraisal levels for each critical element, and the 

appellant’s February 2008 appraisal plan complies with that requirement. IAF, 

Tab 4, Subtab 4z at 6; id., Subtab 4h. With respect to the appraisal period, the 

OPM-approved appraisal system provides that “[a]ll programs will have a 1-year 

appraisal period, except as needed to accommodate program transition,” and that 

the minimum length of an appraisal period will be 90 days. IAF, Tab 4, Subtab 

4z at 3, 6. Consistent with those provisions, PARS sets an appraisal period from 

 

4

 The appellant alleged below that the agency failed to include various items referred to 

in its submission: (a) the agency performance appraisal system approved by OPM on 

July 23, 1997; (b) a description of the summary level patterns approved in July 1997 

and the additional patterns submitted for approval on January 27, 2005; (c) the 

attachment referred to at the top of page 006, describing “other 

restrictions/requirements for using patterns and/or deriving summary levels”; and 

(d) the attachment referred to near the bottom of page 006, describing “criteria and 

procedures for establishing separate appraisal programs.” IAF, Tab 35 at 4; see also 

PFR File, Tab 1 at 15 n.3. With respect to (a), the agency’s submission to OPM merely 

refers in passing to the appraisal system OPM approved on July 23, 1997, and it is 

unnecessary to refer to the text of that system to determine the substance of the system 

which OPM approved on March 3, 2005. With respect to (b), the summary level 

patterns to which the submission refers are the same as those described at 5 C.F.R. 

§ 430.208(d). IAF, Tab 4, Subtab 4z at 3. Items (c) and (d) are included in the 

attachment to OPM Form 1631. See Id. at 5. 
18

January 1, 2008, to September 30, 2008, to accommodate a transition to appraisal 

periods running from October 1 to September 30. IAF, Tab 4, Subtab 4w at 7. 

The appellant objects that in his case the agency set a somewhat shorter appraisal 

period, running from February 9, 2008, to September 30, 2008. See id., 

Subtab 4h at 1, 4i at 1. However, this apparent inconsistency between the 

appellant’s performance plan and the PARS appraisal program does not constitute 

a change to the underlying appraisal system. To the extent the agency may have 

made a procedural error in setting the appellant’s appraisal period, he has not 

explained how that 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. See Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681 

(1991). 

Validity of the performance standards

¶29 Because the appellant has not alleged that the agency failed to 

communicate the performance standards to him, we proceed to his allegation that 

the standards were invalid. Title 5 U.S.C. § 4302(b)(1) requires that performance 

standards, to the maximum extent feasible, permit the accurate evaluation of job 

performance on the basis of objective criteria related to the job in question. 

Standards must be reasonable, realistic, attainable, and clearly stated in writing. 

Thomas v. Department of Defense, 95 M.S.P.R. 123, ¶ 12 (2003), aff’d, 117 F. 

App’x 722 (Fed. Cir. 2004). Provided those requirements are met, however, the 

Board will defer to managerial discretion in determining what agency employees 

must do in order to perform acceptably in their positions. Jackson v. Department 

of Veterans Affairs, 97 M.S.P.R. 13, ¶ 14 (2004).

¶30 The appellant contends that what the agency described as “Critical 

Element #1” of the performance plan commencing February 9, 2008, actually 
19

consisted of 30 distinct tasks, each of which was itself a critical element. 5

 PFR 

File, Tab 1 at 25-26; see IAF, Tab 4, Subtab 4h at 5, 7-8. In support of that 

assertion, the appellant cites the testimony of Anderson who, when prompted by 

the appellant’s attorney, agreed that “[a]ll of the measures and metrics contained 

in Critical Element #1 of the performance plan are critical elements.” Hearing 

Transcript at 114. According to the appellant, the agency thereby “doomed [him] 

to failure by sabotaging him with an overload of critical tasks.” PFR File, Tab 1 

at 26. He further contends that the standards are inconsistent with PARS, which 

requires a minimum of two and a maximum of five critical elements for each 

performance plan. Id.; see IAF, Tab 4, Subtab 4w at 9. In addition, the appellant 

objects that it was unreasonable to expect him to complete his assignments within 

the shortened 7-month appraisal period. PFR File, Tab 1 at 26-27. 

¶31 Notwithstanding Anderson’s testimony, we find that the measures, metrics, 

and focus areas listed under Critical Element #1 of the appellant’s February 2008 

performance plan are not distinct critical elements but rather subelements of a 

single responsibility, i.e., serving as regional Docket Coordinator. The Board has 

long held that a critical element may include subelements and that the incumbent 

of a position for which a compound standard has been established may be 

required to perform acceptably with respect to each of those subelements. 

Shuman v. Department of the Treasury, 23 M.S.P.R. 620, 627-28 (1984). The 

measures, metrics, and focus areas listed under Critical Element #1 are consistent 

with the appellant’s job description. See IAF, Tab 4, Subtab 4v. Furthermore, 

the measures, metrics, and focus areas are in the nature of ongoing tasks, and thus 

were not rendered unreasonable by the shortened performance appraisal period. 

See id., Subtab 4h at 5, 7-8. 

 

5 Title 5 C.F.R. § 432.103(b) defines “critical element” as “a work assignment or 

responsibility of such importance that unacceptable performance on the element would 

result in a determination that an employee’s overall performance is unacceptable.” 
20

Opportunity to demonstrate acceptable performance

¶32 The employee’s right to a reasonable opportunity to improve is a 

substantive right and a necessary prerequisite to all chapter 43 actions. Sandland 

v. General Services Administration, 23 M.S.P.R. 583, 590 (1984). In determining 

whether an agency has afforded an employee a reasonable opportunity to 

demonstrate acceptable performance, relevant factors include the nature of the 

duties and responsibilities of the employee's position, the performance 

deficiencies involved, and the amount of time which is sufficient to enable the 

employee with an opportunity to demonstrate acceptable performance. 

Macijauskas v. Department of Army, 34 M.S.P.R. 564, 566 (1987), aff’d, 847 

F.2d 841 (Fed. Cir. 1988). Here, the agency afforded the appellant a 60-day PIP 

in which he was to complete six enumerated tasks. IAF, Tab 4, Subtab 4s at 5-6. 

Anderson found the appellant’s performance unsatisfactory based primarily on his 

failure to complete the first two tasks: (1) to resolve all inconsistencies between 

the Docket information for region III and the information in databases used to 

obtain information for the Docket, e.g., CERCLIS; and (2) to prepare a list of 

revisions, deletions, and additions in advance for Update #24 to the national 

Docket. Id., Subtabs 4g, 4s at 5-6. 

¶33 The appellant contends on petition for review that the 60-day duration of 

the PIP was unreasonably short. PFR File, Tab 1 at 33-34. However, as the 

administrative judge found, there is no merit to this claim. The Board has found 

that a 30-day PIP can satisfy an agency’s obligation to provide an employee with 

a reasonable opportunity to demonstrate acceptable performance. Melnick v. 

Department of Housing & Urban Development, 42 M.S.P.R. 93, 101 (1989), 

aff’d, 889 F.2d 1228 (Fed. Cir. 1990) (Table). Further, it is undisputed that at the 

time the Docket included 260 sites in Region III, which covers Delaware, 

Maryland, Pennsylvania, Virginia, West Virginia, and the District of Columbia. 

Hearing Transcript at 81 (Anderson); see IAF, Tab 4, Subtab 4j at 6-12. 

Anderson testified without contradiction that she personally completed task (1) 
21

with respect to the Maryland sites, which constitute about 20 percent of the total 

sites for the region, in approximately half a day. Hearing Transcript at 131-33. 

Anderson also testified that the appellant did not have to complete these tasks, 

from start to finish, within 60 days. Rather, he was tasked with finishing 

assignments he had begun over a year before. Id. at 131. Hence, it was not 

unreasonable to expect the appellant to complete tasks (1) and (2) for the entire 

region within the 60 days allotted. 

Performance during the PIP 

¶34 The appellant contends that, for two reasons, the administrative judge erred 

in finding that the agency met its burden of proving by substantial evidence that 

his performance during the PIP was unacceptable. First, he argues even if his 

performance was unsatisfactory with respect to tasks (1) and (2), the record lacks 

substantial evidence that he merited a rating of unacceptable for Critical Element 

#1 as a whole. PFR File, Tab 1 at 33-35. Second, he contends that the agency 

failed to show by substantial evidence that his performance on those two tasks 

was unsatisfactory in the first instance. Id. at 35-40. 

¶35 With respect to his performance on tasks (1) and (2), the appellant objects 

that the agency did not produce copies of certain spreadsheets and data entry 

forms mentioned in the PIP closeout letter. PFR File, Tab 1 at 36-37. However, 

Anderson provided sworn testimony concerning the appellant’s errors and 

omissions—and in any case the appellant does not claim to have resolved all 

Docket inconsistencies or completed the spreadsheet itemizing revisions, 

deletions, and additions in preparation for Update #24. Accordingly, we find that 

the administrative judge did not err in finding that the agency showed by 

substantial evidence that the appellant’s performance on tasks (1) and (2) was 

unacceptable. 

¶36 Where, as here, an appellant’s performance was unacceptable on one or 

more, but not all, components of a critical element, the agency must show 

substantial evidence that the appellant’s performance warranted an unacceptable 
22

rating on the element as a whole. Adkins v. Department of Housing & Urban 

Development, 781 F.2d 891, 895 (Fed. Cir. 1986); Shuman, 23 M.S.P.R. at 628. 

The evidence the agency may submit to satisfy its burden of proof on this point 

includes evidence that the employee knew or should have known the significance 

of the subelement or subelements at issue and evidence showing the importance 

of the subelement or subelements in relation to the duties and responsibilities 

with which the critical element as a whole is concerned. Adkins, 781 F.2d at 895; 

Shuman, 23 M.S.P.R. at 628-29. 

¶37 In finding that the agency had met its burden, the administrative judge 

cited Vyas v. Department of the Army, 83 M.S.P.R. 452, ¶¶ 2, 4 (1999), in which 

the Board affirmed a chapter 43 removal based on the appellant’s unsatisfactory 

performance on five out of six performance objectives. Initial Decision at 13. 

On petition for review, the appellant observes that unsatisfactory performance on 

two out of six objectives is a significantly smaller numerical proportion. PFR 

File, Tab 1 at 34-35. However, an agency need not show that an employee’s 

performance was unacceptable on a majority of subelements in order to prove 

unacceptable performance on the critical element as a whole. See, e.g., Rogers v. 

Department of Defense Dependents Schools, Germany Region, 814 F.2d 1549, 

1554 (Fed. Cir. 1987) (unsatisfactory performance on one of six components of 

one critical element and two of four components of another warranted an 

unacceptable rating on both critical elements). Here, the agency provided 

substantial evidence that the appellant was or should have been aware that the 

successful completion of tasks (1) and (2) was central to the very purpose of the 

regional Docket Coordinator position, i.e., to assist the agency with its statutory 

obligation to maintain and provide regular updates to the federal Docket. See 

42 U.S.C. § 9620(c); Hearing Transcript at 81-86, 105-06 (Anderson); IAF, 

Tab 4, Subtab 4v (position description); Docket Reference Manual (March 9, 

2007 Interim Final), at IAF, Tab 26, Subtab H. Accordingly, we find that the 

administrative judge did not err in finding that the agency established by 
23

substantial evidence that the appellant’s performance was unsatisfactory on 

Critical Element #1 as a whole. 

Harmful error claims 

¶38 We further find that the administrative judge was correct in rejecting the 

appellant’s claims of harmful error. The appellant contends that the agency 

committed harmful error by developing the PIP without his consultation. PFR 

File, Tab 1 at 30-31. As he correctly notes, PARS requires that a supervisor 

develop a PIP in consultation with the employee. IAF, Tab 4w at 21. However, 

the appellant does not explain with any specificity how he was harmed by the 

alleged lack of consultation but simply reiterates his objections to the length of 

the PIP and the breadth of the assignments. PFR File, Tab 1 at 30-31. 

Furthermore, whatever suggestions the appellant might have offered during the 

consultation process, PARS provides that a PIP will be implemented regardless of 

whether the employee approves or agrees to sign it. IAF, Tab 4w at 23. Hence, 

even if the agency did commit procedural error with respect to the consultation 

requirement, the appellant has not shown how it affected the outcome of the PIP 

and the agency’s subsequent removal action. See Stephen, 47 M.S.P.R. at 681. 

¶39 Furthermore, the appellant did not establish that Anderson erred by not 

placing him on PAP before issuing a PIP during the same appraisal period. See 

PFR File, Tab 1 at 24. Contrary to the appellant’s assertion on petition for 

review, PARS does not require that, for any performance appraisal period, a PAP 

be issued prior to a PIP. While § 29B of PARS states that this will “ordinarily” 

be the case, the same section provides that an employee “may immediately be 

placed on a PIP.” IAF, Tab 4, Subtab 4w at 22. 

¶40 There is also no merit to the appellant’s contention that the agency 

improperly based the action in part on instances of alleged unacceptable 

performance which took place more than 1 year prior to the date of the proposal 

notice. PFR File, Tab 1 at 27-29; see 5 U.S.C. § 4303(c)(2)(A). The 

administrative judge correctly found that, although the July 30, 2008 notice 
24

placing the appellant on a PIP refers by way of background to a previous PIP that 

ran from November 30, 2007, to February 8, 2008, it is clear from the proposal 

notice, the decision letter, and the testimony of the deciding official that the 

agency’s decision to remove him was based solely on his performance during the 

PIP that ran from July 30, 2008, to September 30, 2008. IAF, Tab 4, Subtabs 4b, 

4f, 4s; Hearing Transcript at 230 (Newsom). 

Discrimination claim

¶41 Ordinarily, to establish a claim of prohibited employment discrimination 

under Title VII based on circumstantial evidence, an employee first must 

establish a prima facie case; the burden of going forward then shifts to the agency 

to articulate a legitimate, nondiscriminatory reason for its action; and, finally, the 

employee must show that the agency's stated reason is merely a pretext for 

prohibited discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

802-04 (1973). While the necessary elements of a prima facie case of prohibited 

discrimination vary according to the particular facts and circumstances at issue, a 

person claiming employment discrimination under Title VII carries the initial 

burden of showing actions taken by the employer from which one can infer, if 

such actions remain unexplained, that it is more likely than not that such actions 

were based on an impermissible criterion. Furnco Construction Co. v. Waters, 

438 U.S. 567, 575-76 (1978). One way in which an employee may establish a 

prima facie case is by introducing preponderant evidence to show that he is a 

member of a protected group, that he was similarly situated to an individual who 

was not a member of the protected group, and that he was treated more harshly or 

disparately than the individual who was not a member of his protected group. 

Buckler v. Federal Retirement Thrift Investment Board, 73 M.S.P.R. 476, 497 

(1997). 

¶42 Here, the administrative judge found that the appellant failed to establish a 

prima facie case of national origin discrimination. Initial Decision at 13-14. 

However, because the record is complete and the agency has already articulated a 
25

legitimate, nondiscriminatory reason for its action, i.e., his alleged unsatisfactory 

job performance, the agency has done everything that would be required of it if 

the appellant had made out a prima facie case, and whether he in fact did so is no 

longer relevant. Bowman v. Department of Agriculture, 113 M.S.P.R. 214, ¶ 7 

(2010); Marshall v. Department of Veterans Affairs, 111 M.S.P.R. 5, ¶ 16 (2008). 

Rather, the inquiry proceeds directly to the ultimate question of whether, upon 

weighing all of the evidence, the appellant has met his overall burden of proving 

illegal discrimination, that is, whether the appellant has produced sufficient 

evidence to show that the agency's proffered reason was not the actual reason for 

the removal and that the agency intentionally discriminated against him. 

Bowman, 113 M.S.P.R. 214, ¶ 7; Marshall, 111 M.S.P.R. 5, ¶ 17. The evidence 

to be considered at this stage may include: (1) the elements of the prima facie 

case; (2) any evidence the employee presents to attack the employer's proffered 

explanations for its actions; and (3) any further evidence of discrimination or 

retaliation that may be available to the employee, such as independent evidence 

of discriminatory statements or attitudes on the part of the employer, or any 

contrary evidence that may be available to the employer, such as a strong track 

record in equal opportunity employment. Marshall, 111 M.S.P.R. 5, ¶ 17. 

¶43 The administrative judge found that, in support of his claim, the appellant 

alleged only that his second level supervisor, Sokolowski, “commented that he 

was mysterious and never left his cubicle except to use the restroom or kitchen.” 

Initial Decision at 13. We agree with the appellant that this finding was in error. 

The appellant also testified below that he had “seen in the files” that his five 

predecessors in the Region III Docket Coordinator position, none of whom were 

Chinese, were not required to perform the same types of assignments he was 

required to perform and that Sokolowksi was the only individual who was 

constant in the supervisory chain. Hearing Transcript at 382-85. Nevertheless, 

we find that the appellant’s vague testimony, unsupported by documentary 

evidence, is insufficient to establish by preponderant evidence that the agency’s 
26

action was the result of national origin discrimination. The appellant contends 

that, had the administrative judge granted his second motion to compel and his 

motion for a subpoena duces tecum, he could have obtained documents that would 

establish that he was treated differently from his predecessors. PFR File, Tab 1 

at 32-33. However, as discussed above, the appellant failed to submit a timely 

motion to compel production of those documents, and the administrative judge 

properly denied his belated efforts to obtain them. Accordingly, we find that the 

administrative judge reached the correct conclusion in rejecting the appellant’s 

discrimination claim. 

ORDER

¶44 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 FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. 

Discrimination Claims: Administrative Review

You may request the Equal Employment Opportunity Commission (EEOC) 

to review this final decision on your discrimination claims. See Title 5 of the 

United States Codes, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). You must send 

your request to EEOC at the following address: 

Equal Employment Opportunity Commission 

Office of Federal Operations 

P.O. Box 77960 

Washington, DC 20036 

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 
27

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 

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

29 U.S.C. § 794a. 

Other Claims: Judicial Review

If you do not want to request review of this final decision concerning your 

discrimination claims, but you do want to request review of the of the Board’s 

decision without regard to your discrimination claims, you may request the 

United States Court of Appeals for the Federal Circuit to review this final 

decision on the other issues in your appeal. 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 your receipt of this order. If you have a representative in this case, and your 
28

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. If you choose 

to 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). You may read 

this law, as well as review the Board’s regulations and other related material, at 

our website, http://www.mspb.gov. Additional information is available at the 

court's website, www.cafc.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. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.