                      NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                        is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                          04-3115

                                 DEBORAH A. THOMAS,

                                                                      Petitioner,

                                             v.

                             DEPARTMENT OF DEFENSE,

                                                                      Respondent.

                          ___________________________

                          DECIDED: November 16, 2004
                          ___________________________


Before RADER, LINN, and DYK, Circuit Judges.

PER CURIAM.

      Petitioner Deborah Thomas (“Thomas”) petitions for review of the final decision

of the Merit Systems Protection Board (“Board”), sustaining the action by respondent,

the Department of Defense, removing Thomas from her position. We affirm.

                                   BACKGROUND

      Thomas was employed as a sales store checker at the Defense Commissary

Agency. Sales store checkers perform sales clerical duties, and are expected to ensure

that the correct amount of money is in the till at the end of a day. As defined by the

relevant performance standard, a “variance” is a discrepancy between the amount of

money actually in the till, and the amount that is supposed to be there. An “excessive

variance” occurs when the discrepancy exceeds $ 6.00. Element 4 of the applicable

performance standard permitted: (1) No more than two excessive variances per month;
(2) no more than eight non-excessive variances per month; (3) no single variance or

combination of variances totaling more than $ 50.00 per month; (4) no trend of overages

or shortages. The standard states that “failure to meet any of the above will constitute

not meeting the element.” (Resp’t App. at 27.)

      On March 12, 2001, the agency advised Thomas that her performance was

falling short of that required. Specifically, she had 11 variances in December 2000,

totaling $ 59.42; and she had 15 variances in January 2001.         The agency placed

Thomas on a performance improvement plan (“PIP”). Thomas successfully completed

her PIP on August 21, 2001. At that time, the agency provided written warning that, if

Thomas should again fail to maintain an acceptable level of performance during the

next one-year period, she could be subject to removal without additional opportunities to

improve.

      In November 2001, Thomas had 11 non-excessive variances. On December 15,

2001, she had a shortage of $ 99.95 for that single day.          In light of these two

developments, the agency proposed her removal on April 11, 2002.           The removal

became effective on May 18, 2002.

      Thomas appealed her removal to the Board. The administrative judge upheld the

charge that Thomas had a variance exceeding $ 50.00, but found a standard that

permitted no more than eight variances, no matter how small the amount of the

variance, was unreasonable and unattainable. The administrative judge reasoned that

the variances may be due to the coin packages provided to Thomas being off by one or

two coins, this of course not being Thomas’ fault. The administrative judge also found

the standard unreasonable because it counted de minimus errors of a single penny in




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determining the number of variances. The administrative judge set aside Element 4 in

its entirety and ordered Thomas’ reinstatement. The full Board reversed and sustained

the agency’s removal. The full Board upheld the prohibition against $ 50.00 cumulative

variances because neither side challenged its validity before it.      It reversed the

administrative judge’s ruling on the unreasonableness of the prohibition against eight

variances because it believed that eight variances was large enough a number to allow

for a reasonable number of errors by Thomas, and thus there was substantial evidence

to show that the standard was reasonable and attainable. Thomas v. Dep’t of Defense,

DC-0432020567-I-1 (M.S.P.B. Oct. 17, 2003). Thomas appeals to this court. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). After the submission of this appeal, we

ordered supplemental briefing on the question:

      If the court upholds the agency’s prohibition against cumulative variances
      exceeding $ 50 per month as applied in this case, does it need to reach
      the reasonableness of the prohibition against 8 non-excessive variances in
      order to affirm the Board’s decision?

                                    DISCUSSION

      The Board’s decision must be affirmed unless it is found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule or regulation; or unsupported by substantial

evidence. 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480,

1483 (Fed. Cir. 1998).

                                           I

      Thomas’ first argument is the requirement that the cumulative variance per

month must not exceed $ 50.00 is an absolute performance standard, and that “[a]n

absolute standard constitutes an abuse of discretion unless death, injury, breach of



04-3115                                3
security, or great monetary loss could result from a single failure to meet the standard.”

Pet’r Br. at 12 (citing Sullivan v. Dep’t of the Navy, 44 M.S.P.R. 646, 652 (1990);

Callaway v. Dep’t of the Army, 23 M.S.P.R. 592, 599 (1984)). We specifically overruled

the Board’s Callaway line of cases in Guillebeau v. Department of the Navy, 362 F.3d

1329, 1337 (Fed. Cir. 2004). The agency has authority under 5 U.S.C. § 4302 to set

performance standards, and nothing in section 4302 can be read to bar absolute

performance standards.       Guillebeau, 362 F.3d at 1337.    Thomas’ argument to the

contrary is without merit.

       Thomas next argues that the prohibition of cumulative variances exceeding

$ 50.00 is unreasonable. “[P]erformance standards “must be reasonable, based on

objective criteria, and communicated to the employee in advance.” Guillebeau, 362

F.3d at 1337; Wilson v. Dep't of Health & Human Servs., 770 F.2d 1048, 1052 (Fed. Cir.

1985). The administrative judge found that $ 50.00 is a “significant amount of money.”

(Pet’r App. at 18.) We think that a standard designed to prevent the loss of a significant

amount of money is reasonable.       There is no dispute that Thomas had a $ 99.95

variance on December 15, 2001. The Board’s findings that the prohibition against $

50.00 cumulative variances is reasonable, and that Thomas failed this requirement, are

both supported by substantial evidence. We stated in Lovshin v. Department of the

Navy, 767 F.2d 826 (Fed. Cir. 1985) (en banc), that “an agency may reduce in grade or

remove an employee for receiving a rating of ‘unacceptable’ with respect to even a

single ‘critical element.’” Id. at 834 (emphasis in original). We also stated that “[s]uch

action may be taken without regard to performance on other components of the job.” Id.

The agency properly removed Thomas for failure to meet the performance standard.




04-3115                                 4
                                            II

      Thomas also argues that the requirement that a cashier have no more than eight

non-excessive variances per month, where “non-excessive variance” includes variances

of a single penny, is unreasonable.

      While there may be merit to Thomas’ argument, we need not address the issue

of whether the prohibition against eight non-excessive variances is unreasonable. The

agency’s notice of proposed removal had one single charge:                 Unacceptable

performance due to failure to meet Element 4.       (Resp’t App. at 28.)    That charge

contained two specifications: (1) A cumulative variance over $ 50.00 on December 15,

2001; and (2) eleven non-excessive variances in the month of November 2001. (Id. at

29)   The agency sustained this charge by finding both specifications proved, and

removed Thomas as a consequence thereof. (Id. at 36.)

      Our cases clearly establish that where one of two specifications in a charge is

sustained, the charge as a whole must be sustained. Guise v. Dep’t of Justice, 330

F.3d 1376, 1380 (Fed. Cir. 2003); LaChance v. Merit Sys. Prot. Bd., 147 F.3d 1367,

1371 (Fed. Cir. 1998).      We have already sustained the charge based on the

specification that Thomas had a $ 99.95 variance on December 15, 2001. Having

already decided that Thomas was properly removed on the basis of one specification,

we need not consider whether the other specification could have been properly

sustained.   Thomas does not appear to argue to the contrary.            Rather, in her

supplemental brief, relying on Eibel v. Department of the Navy, 857 F.2d 1439 (Fed. Cir.

1988), she argues that the entire standard is unenforceable because the portion

concerning eight non-excessive variances is invalid. Nothing in Eibel or any of our other




04-3115                                 5
cases permits this type of facial challenge to performance standards.     Since the

prohibition against $ 50.00 cumulative variances survives Thomas’ challenge, other

portions of the standard need not be considered.

                                    CONCLUSION

      For the foregoing reasons, the decision of the Board is affirmed.

                                        COSTS

      No costs.




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