                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAVID SCHILLER,                                 DOCKET NUMBER
                  Appellant,                         PH-0432-13-0143-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: January 28, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           J. Thomas Harrington, Esquire, Washington, D.C., for the appellant.

           Timothy A. Wray, Fort Belvoir, Virginia, 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 his removal for unacceptable performance and denied his affirmative
     defenses. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
     required 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 significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     on an erroneous 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 available when the record closed.        See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering 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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2         The agency appointed the appellant as professor of contract management at
     the Defense Acquisition University on July 5, 2011. Initial Appeal File (IAF),
     Tab 5 at 175. The agency placed him on a 5 ½-month performance improvement
     plan (PIP) on May 10, 2012, based upon the agency’s determination that the
     appellant’s performance was unacceptable in the critical elements of teaching,
     knowledge management, and leadership.        Id. at 135-42.   The agency issued a
     notice of proposed removal under chapter 43 for failing to satisfy the
     requirements of the PIP in October 2012. Id. at 45-48. Regarding the teaching
     goal, the agency stated that the appellant received sub-element scores below the
     required level in two appraisal categories, he received negative comments from
     students, and the dean did not grant certification to teach the required class due to
     “the continued inconsistent level of instruction and leadership demonstrated in
     the classroom.” Id. at 45-46. The notice stated that the appellant failed to meet
     his knowledge sharing objective in that he did not answer two “Ask a Professor”
     (AAP) questions per month or successfully complete two Acquipedia articles by
                                                                                      3

     the deadline. Id. at 46. Finally, the agency maintained that the appellant had
     failed to demonstrate appropriate leadership skills.    Id.     After reviewing the
     appellant’s oral and written responses, the dean, as deciding official, found that
     the proposed removal was supported by a preponderance of the evidence and
     removed the appellant from his position. Id. at 36-37, 42-44.
¶3        The appellant filed an initial appeal challenging his removal and raising
     affirmative defenses of sex and age discrimination. IAF, Tab 1 at 4, 7. After a
     5-day hearing, the administrative judge issued an initial decision affirming the
     agency’s removal action and denying both of the appellant’s affirmative defenses.
     IAF, Tab 63, Initial Decision (ID).    In her initial decision, the administrative
     judge found that the appellant’s performance standards were valid, the agency
     properly communicated them to the appellant, and the appellant was given a
     reasonable opportunity to improve his performance but it remained unacceptable
     in the three critical elements alleged by the agency.           ID at 5-20.    The
     administrative judge found that the record did not support the appellant’s
     allegations of discrimination based on sex or age, and that the appellant had not
     shown that he was treated differently or more harshly than younger female
     employees. ID at 29.
                     DISCUSSION OF ARGUMENTS ON REVIEW
¶4        In his petition for review, the appellant argues that the administrative judge
     made numerous erroneous findings of material fact in the initial decision and that
     the Board should substitute its own determinations of fact for those made by the
     administrative judge. Petition for Review (PFR) File, Tab 1 at 4. The appellant
     alleges that the administrative judge failed to consider much of the appellant’s
     evidence, thus making erroneous determinations, regarding his allegations as
     follows: (1) the agency violated the express terms of the PIP by increasing the
     appellant’s workload; (2) the agency failed to provide the appellant with a
     reasonable opportunity to demonstrate acceptable performance; (3) the appellant
     reduced the number of negative student comments and was denied certification
                                                                                        4

     for the required class by the dean’s abuse of discretion; (4) the agency delayed in
     providing a classroom observer during the PIP, which impacted his PIP
     performance; (5) the appellant made an innocuous comment about Afghanistan;
     (6) the appellant complied with administrative processes and procedures
     regarding attendance at a conference, use of supplementary materials, cell phone
     usage, seating assignments, and generation of AAP questions; (7) the agency
     showed animus in imposing improper AAP and Acquipedia PIP requirements, but
     that the appellant established success in meeting the requirements; and (8) the
     record contained evidence of the dean’s personal animus and gender bias. Id. at
     4-5. The agency has filed a response, arguing that the administrative judge’s
     findings are consistent with the evidence and should not be disturbed. PFR File,
     Tab 3 at 4. The appellant has filed a reply, again arguing that the initial decision
     does not demonstrate that the administrative judge considered the specific facts
     and evidence he cited in his petition for review. PFR File, Tab 4 at 4-5.
¶5          We have reviewed the appellant’s petition for review and the administrative
     judge’s thorough analysis in the initial decision and find that the appellant has
     presented no basis on review to disturb the initial decision.      The petition for
     review identifies certain evidence and arguments, made below as part of the
     voluminous record in the present case, and asserts that the administrative judge
     ignored or failed to consider the evidence because the 35-page initial decision did
     not specifically address each detail regarding the appellant’s tenure at the agency.
     See PFR File, Tab 1 at 4-5; IAF, Tab 61 at 19, 24-26, 44-47, 58-60, 64, 68, 71-72,
     81-82.    An administrative judge’s determination not to mention all of the
     extensive testimony and evidence does not mean that she did not consider it in
     reaching her decision upholding the agency’s action. Marques v. Department of
     Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062
     (Fed. Cir. 1985) (Table). The appellant argues that the initial decision failed to
     meet     the    requirements    of    Spithaler     v.   Office    of       Personnel
     Management, 1 M.S.P.R. 587, 589 (1980), in which the Board stated that an
                                                                                            5

     initial decision must identify all material issues of fact and law, summarize the
     evidence, resolve issues of credibility, and include the administrative judge’s
     legal reasoning and conclusions of law. PFR File, Tab 4 at 5. In contrast to the
     initial decision in Spithaler, 1 M.S.P.R. at 589, the initial decision in the present
     case contains approximately thirty pages of detailed analysis, ID at 2-31. The
     appellant offers no authority for the proposition that an initial decision must
     address each individual alleged fact in the voluminous written and hearing record,
     and ignores the instruction of Spithaler to “summarize” the evidence.                See
     Spithaler, 1 M.S.P.R. at 589. We find that the appellant’s arguments on review
     constitute mere disagreement with the administrative judge’s explained findings
     on the issues, and we see no reason to reweigh the evidence or substitute our
     assessment of the record evidence for that of the administrative judge in this
     appeal.   See 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).

     The administrative judge properly sustained the appellant’s removal.
¶6         To prevail in an appeal of a performance-based removal under chapter 43,
     the agency must establish the following by substantial evidence 2: (1) the agency
     notified the appellant of the performance standards and critical elements of his
     position; (2) the appellant’s performance standards are valid under 5 U.S.C.
     § 4302(b)(1); (3) the agency warned the appellant of the inadequacies of his


     2
       Substantial evidence is 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.” Towne v. Department of the Air
     Force, 120 M.S.P.R. 239, ¶ 6 (2013) (quoting 5 C.F.R. § 1201.56(c)(1)). The agency’s
     evidence need not be more persuasive than that of the appellant to meet this standard, as
     substantial evidence is a lesser standard of proof than preponderance of the evidence.
     Towne, 120 M.S.P.R. 239, ¶ 6.
                                                                                        6

     performance during the appraisal period and gave him an adequate opportunity to
     improve; and (4) after an adequate improvement period, the appellant’s
     performance remained unacceptable in at least one critical element. Towne v.
     Department of the Air Force, 120 M.S.P.R. 239, ¶ 6 (2013).             The appellant
     challenges   the   administrative   judge’s   findings   that   the   agency   proved
     requirements three and four by substantial evidence. See PFR File, Tab 1 at 4-5.
¶7         We find that the appellant has not shown that the administrative judge erred
     in finding that the agency provided him with a reasonable opportunity to
     demonstrate acceptable performance during the PIP. PFR File, Tab 1 at 9-10. In
     her well-reasoned initial decision, the administrative judge cited Board authority
     for the relevant factors in a determination of a meaningful opportunity to
     improve, including the nature of the appellant’s employment duties, the
     performance deficiencies involved, and the amount of time sufficient to enable
     the employee to demonstrate acceptable performance.         See ID at 11; see also
     Macijauskas v. Department of the Army, 34 M.S.P.R. 564, 566 (1987), aff’d
     847 F.2d 841 (Fed. Cir. 1988) (Table). The appellant makes no argument of legal
     error but alleges that the administrative judge ignored evidence that the agency
     had increased his workload during the PIP and that the PIP requirements were
     “non-negotiable” and exceeded the         requirements of       his Faculty Career
     Assessment Plan (FCAP).        PFR File, Tab 1 at 9-10.           As noted by the
     administrative judge, the record demonstrates that the agency provided the
     appellant with an extended 5 ½-month PIP period with clear written requirements
     and that his supervisor provided him with regular feedback both in writing and
     periodic in-person progress meetings. See IAF, Tab 5 at 49, 58-88, 135-38; ID at
     3, 13, 16.
¶8         We have considered the appellant’s arguments that the agency did not
     provide him a reasonable opportunity to demonstrate acceptable performance
     during the PIP and find that the record does not support such a conclusion. The
     appellant argued that he had “established” through the testimony of R.N., a
                                                                                        7

     Defense Acquisition University department chair, that the PIP requirements
     improperly exceeded the FCAP requirements and that the dean and the appellant’s
     immediate supervisor “did not want Schiller to succeed.” PFR File, Tab 1 at 10;
     see IAF, Tab 61 at 61, 114-15; Hearing Testimony (HT) at 638: 4-15.              The
     petition for review cites no authority for the proposition that the requirements in a
     PIP cannot exceed the requirements of the appellant’s prior performance goals or
     that a PIP must be negotiable. Board authority states that an agency may modify
     the quality and quantity of performance required of its employees, as long as it
     does so according to a reasonable standard and makes the appellant aware of the
     modifications. Mouser v. Department of Health & Human Services, 32 M.S.P.R.
     543, 548 (1987).
¶9         As for the testimony of R.N., the transcript reflects that he testified to his
     personal opinion that it was “inappropriate” to include a goal in a PIP not in the
     FCAP, but did not testify to an agency policy or other authority precluding such a
     practice.   HT at 627: 14-24. R.N. testified that he was a professor and prior
     department chair of the Logistics Department, and that he was not the appellant’s
     supervisor, but instead was personal friends with the appellant.         See HT at
     598: 5-22. He testified that he supervised only two faculty members, HT at 602:
     21-23, and at no point indicated that he had any authority to determine the
     appropriateness of PIP goals determined by agency officials.         Regarding the
     appellant’s argument that the additional teaching assignment he accepted upon
     request by the agency negatively affected his ability to complete other PIP
     requirements, we note that, despite these claims, the appellant testified that he
     retained 2 weeks of “white space” during the month preceding the deadline for his
     two Acquipedia articles. See PFR File, Tab 1 at 8-9; HT at 1299: 16-25. Thus,
     after reviewing the evidence highlighted by the appellant, we find that this
     evidence does not undermine the administrative judge’s well-reasoned finding
     that the appellant was given a reasonable opportunity to demonstrate acceptable
     performance during his PIP.
                                                                                        8

¶10         The appellant argues that the administrative judge erred in finding that the
      agency established that the appellant’s performance remained unacceptable in at
      least one critical element, alleging that she failed to consider his evidence
      because she did not address several of his alleged facts. See PFR File, Tab 1 at
      10-30.    The administrative judge need not respond to every theory and
      speculation presented by the appellant in reaching her determination.           See
      Marques, 22 M.S.P.R. at 132. Moreover, we find that none of the claimant’s
      arguments are of sufficient weight to overturn the administrative judge’s finding
      that his performance remained unacceptable in at least one critical element. The
      failure to demonstrate acceptable performance under a single critical element will
      support removal under chapter 43. Towne, 120 M.S.P.R. 239, ¶ 6. As such, we
      find it necessary to discuss only one critical element in this decision.
¶11         Regarding the critical element of knowledge sharing, the appellant’s
      arguments on review mirror the arguments that he made before the administrative
      judge, who considered them in her thorough and well-reasoned decision.          See
      IAF, Tab 61 at 92-95; PFR File, Tab 1 at 29-30. The administrative judge found
      that the agency established that the appellant had not met his PIP goal in the
      critical element of knowledge sharing, which in part required the appellant to
      complete and submit for publishing two Acquipedia articles by October 1, 2012.
      ID at 14-15; see IAF, Tab 5 at 42, 136-37.           The appellant argues that he
      “established his own success” in meeting the requirement, which was improper as
      many agency professors submitted none in a given year, but that his supervisor
      deviated from the normal handling process. PFR File, Tab 1 at 29; see IAF, Tab
      61 at 92-95. Both the appellant and his supervisor testified that the appellant
      submitted his second Acquipedia article on September 28, 2012. HT at 60: 5-7,
      231: 5-6, 1177: 10-16.        The appellant’s supervisor further testified that
      September 28, 2012, was a Friday and that the appellant submitted the draft
      article at 4:25 p.m., which did not satisfy the PIP requirement that the articles be
      completed, have been reviewed and concurred upon, and submitted for publishing
                                                                                        9

      by Monday, October 1, 2012. HT at 231: 5-15; see IAF, Tab 5 at 137. Indicating
      the administrative judge’s review of the evidence, the initial decision discussed
      both the testimony of the appellant and his supervisor regarding the PIP goals in
      this critical element, including the testimony regarding the suitability of the
      articles for publication when submitted by the appellant.       ID at 14-15.     As
      discussed above, despite his arguments that the increased course load negatively
      affected his ability to draft the articles, PFR File, Tab 1 at 29-30, the appellant
      testified that he had 2 weeks in September without teaching commitments, to
      which he referred as “white space,” and he offered no argument that the length of
      his PIP was insufficient to complete the assignment, HT at 1299: 16-25. Thus,
      we find that the appellant’s arguments on review constitute mere disagreement
      with the factual findings of the administrative judge. The initial decision reflects
      that the administrative judge considered the evidence as a whole, drew
      appropriate inferences, and made reasoned conclusions that the agency had met
      its burden of proving continued unacceptable performance despite a reasonable
      opportunity   to   improve.       See     Paetow   v.   Department    of   Veterans
      Affairs, 118 M.S.P.R. 462, ¶ 13 (2012).

      The administrative judge correctly found that the appellant failed to prove his
      affirmative defenses.
¶12        The appellant argues that the administrative judge failed to consider his
      evidence of the agency’s animus in imposing improper PIP requirements with
      respect to the AAP questions and Acquipedia articles. PFR File, Tab 1 at 26-30.
      The appellant does not specify the nature of this “animus” on review but merely
      alleges that other professors were not subject to the same requirements. Id. The
      appellant further argues that the administrative judge failed to consider his
      evidence of the dean’s “personal animus and gender bias,” despite conceding that
      the administrative judge did an “adequate job” considering evidence regarding
      identified comparators and the testimony of a particular former instructor. Id. at
      31; see PFR File, Tab 4 at 17-18. He argues that the administrative judge made
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      an erroneous finding of material fact because she “ignored” the appellant’s
      evidence that the dean misinterpreted his comments and actions as inappropriate
      without reason. PFR File, Tab 1 at 31-32. Notably, the appellant cited only the
      dean’s misinterpretation of the appellant’s behavior as evidence of gender bias on
      review and repeated no allegations of disparate treatment based on the appellant’s
      age. Id.; see IAF, Tab 1 at 30-32.
¶13         We find that the appellant has presented no basis for overturning the
      administrative judge’s findings. In her initial decision, the administrative judge
      provided in-depth analysis for her finding that the appellant had not clearly
      established that he was treated more harshly than younger or female faculty
      members. 3      ID at 25-26.    The appellant argues that the administrative judge
      ignored his evidence of the dean’s gender bias because she did not specifically
      discuss   his    arguments     concerning   three   particular   incidents   of   alleged
      misunderstanding by the dean of the appellant’s words or actions. See PFR File,
      Tab 4 at 17-18. As discussed above, an initial decision need not mention all of
      the extensive testimony and evidence in reaching a well-reasoned determination.
      Marques, 22 M.S.P.R. at 132. The administrative judge discussed the diverging
      testimony of numerous witnesses and her reasons for finding that one witness
      who testified to the gender bias of the dean lacked credibility because he never
      observed the dean and the appellant together, unlike the other witnesses. ID at
      28-29.    The appellant has not provided any arguments of legal error or
      sufficiently sound factual reasons on review to overturn the administrative
      judge’s findings concerning his affirmative defenses. See Haebe v. Department
      of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (the Board must give deference

      3
        Although we find it unnecessary to discuss the appellant’s performance in the critical
      elements of teaching and leadership, we have reviewed his arguments on review that the
      agency failed to meet its burden to prove that his performance remained unacceptable in
      these critical elements during the PIP. Even if we found these arguments persuasive,
      the evidence in the record is insufficient to meet the appellant’s burden of proof
      concerning his discrimination claims.
                                                                                      11

      to an administrative judge’s credibility determinations when they are based,
      explicitly or implicitly, on observation of the demeanor of witnesses testifying at
      a hearing; the Board may overturn such determinations only when it has
      “sufficiently sound” reasons for doing so).
¶14         For the aforementioned reasons, the administrative judge’s initial decision
      sustaining the appellant’s removal from employment is AFFIRMED.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                 Office of Federal Operations
                          Equal Employment Opportunity Commission
                                       P.O. Box 77960
                                  Washington, D.C. 20013

            If you submit your request via commercial delivery or by a method
      requiring a signature, it must be addressed to:
                                 Office of Federal Operations
                          Equal Employment Opportunity Commission
                                      131 M Street, NE
                                        Suite 5SW12G
                                  Washington, D.C. 20507

            You should send your request to EEOC no later than 30 calendar days after
      your receipt of this order. If you have a representative in this case, and your
      representative receives this order before you do, then you must file with EEOC no
      later than 30 calendar days after receipt by your representative. If you choose to
      file, be very careful to file on time.
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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)
and 29 U.S.C. § 794a.
     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 before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
