                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANTOINETTE B. BRADY,                            DOCKET NUMBER
                   Appellant,                        AT-0432-14-0389-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: July 24, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Stephanie Bernstein, Esquire, and Bobby Devadoss, Esquire, Dallas, Texas,
             for the appellant.

           Terry Rush, Mark Slowiaczek, and Joseph Sullivan, Millington, Tennessee,
             for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s performance-based removal action. Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous
     findings of material fact; the initial decision is based on an erroneous

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     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

     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        On August 27, 2013, the agency placed the appellant on a 34-day
     performance improvement plan (PIP) for unacceptable performance in the
     following three Critical Elements of her GS-14 Equal Employment Manager
     position: (1) Implementation of Model Equal Employment Opportunity (EEO)
     Program Office Infrastructure; (2) Development of EEO Briefings; and
     (3) Development of the Bureau of Naval Personnel FY13 Model EEO Program
     Report.   Initial Appeal File (IAF), Tab 7 at 51-55, 119.        After the agency
     determined that the appellant’s performance in Critical Elements 1, 2, and 3 had
     not improved to the acceptable level, the agency issued a notice of proposed
     removal on October 28, 2013. Id. at 77-79; see IAF, Tab 1 at 14-30. At the same
     time, the agency placed the appellant on administrative leave pending a decision
     on her proposed removal. IAF, Tab 1 at 11. The appellant presented an oral
     reply and submitted a written reply to the proposal notice. IAF, Tab 7 at 82-114.
     After considering the appellant’s oral and written replies, the deciding official
                                                                                           3

     decided to remove her for unacceptable performance in Critical Elements 1, 2,
     and 3 of her position effective December 10, 2013. Id. at 116-17, 119.
¶3         The appellant filed an appeal of her removal with the Board. IAF, Tab 1.
     She raised the affirmative defenses of a due process violation and discrimination
     based on age and disability. 2 IAF, Tab 1 at 3, Tab 3 at 3, 5, Tab 20 at 1, Tab 24
     at 4-7, 12-17, 30-32.     In an initial decision based on the written record, the
     administrative judge affirmed the agency’s removal action. IAF, Tab 28, Initial
     Decision (ID) at 1, 23-24. She also found that the appellant failed to meet her
     burden of proving her affirmative defenses. ID at 17-23.
¶4         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 2.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge properly sustained the appellant’s performance-based
     removal.
¶5         To prevail in an appeal of a performance-based removal under chapter 43,
     the agency must establish by substantial evidence 3 that:           (1) the Office of
     Personnel Management (OPM) approved its performance appraisal system and
     any significant changes thereto; 4 (2) the agency communicated to the appellant




     2
       The appellant withdrew her affirmative defenses of race discrimination and retaliation
     for protected EEO activity. IAF, Tab 24 at 12.
     3
       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.” 5 C.F.R. § 1201.4(p).
     4
       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. Lee v. Environmental Protection Agency, 115 M.S.P.R. 533,
     ¶ 5 (2010). We agree with the administrative judge that the appellant has not contested
     this factor. See ID at 5 n.4.
                                                                                          4

     the performance standards and critical elements of her position; 5 (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 her performance during the
     appraisal period and gave her 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 she was provided an opportunity to
     demonstrate acceptable performance. Lee, 115 M.S.P.R. 533, ¶ 5.
¶6         In her petition for review, the appellant claims that the administrative judge
     erred in finding that the agency’s performance standards are valid under 5 U.S.C.
     § 4302(b)(1). PFR File, Tab 1 at 16; see ID at 6-9, 17. To support her argument,
     the appellant reiterates portions of her affidavit that she submitted below alleging
     that the standards are impermissibly vague and subjective. PFR File, Tab 1 at 16;
     see IAF, Tab 24 at 27. Based on our review of the record, and for the reasons
     contained in the initial decision, we discern no reason to disturb the
     administrative judge’s finding that the agency’s performance standards are valid.
     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 she considered the
     evidence as a whole, drew appropriate references, and made reasoned
     conclusions).
¶7         The appellant additionally argues that the administrative judge erred in
     finding that the agency afforded her an adequate opportunity to improve her
     performance. PFR File, Tab 1 at 6-10; see ID at 6-9. Specifically, she alleges
     that she did not receive agency assistance in the form of feedback during the PIP,
     templates and work samples, or daily meetings with her supervisor that were
     described in the PIP.    PFR File, Tab 1 at 7-10.       She further alleges that the


     5
       In her petition for review, the appellant does not dispute the administrative judge’s
     finding that the agency communicated to her the performance standards and critical
     elements of her position. See ID at 9; PFR File, Tab 1. We find no reason to disturb
     this finding.
                                                                                             5

     duration of the PIP was unreasonable and that it was not possible for her to
     complete the assigned tasks in the 24 workdays during her 34-calendar-day PIP.
     Id. at 6-7, 9-10. Finally, she contends that her supervisor denied her requests for
     additional or alternative work hours to complete the PIP assignments. Id. at 10.
¶8         The administrative judge found that the agency provided specific
     instructions on how to complete the appellant’s assignments and where to ask for
     a sample, offered training that she declined, and provided weekly progress reports
     during the PIP period. ID at 6-9, 17. The record supports the administrative
     judge’s finding that the agency provided such assistance during the PIP. IAF,
     Tab 7 at 57-58, 65-71, Tab 27 at 14-17, 21-23. The administrative judge also
     found that someone in the appellant’s high-level position with over 30 years of
     Federal service should have been able to timely and accurately complete the
     assignments.     ID at 9, 17; see Satlin v. Department of Veterans Affairs,
     60 M.S.P.R. 218, 225 (1993) (finding that the administrative judge properly
     considered the appellant’s length of service and experience in concluding that the
     appellant had received both adequate instruction and time in which to
     demonstrate improvement); see also Lee, 115 M.S.P.R. 533, ¶ 32 (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 that is sufficient to provide the
     employee with an opportunity to demonstrate acceptable performance). Based on
     our review of the record, we agree with the administrative judge’s finding that the
     agency provided sufficient assistance to the appellant considering her high-level
     position and significant experience. 6

     6
       The appellant claims that the agency did not provide her with sufficient assistance
     because she did not have daily meetings with her supervisor as specified in the PIP.
     PFR File, Tab 1 at 7-8; see IAF, Tab 7 at 51. However, the supervisor stated in an
     affidavit that she was available for daily meetings, but the appellant did not request any
     additional meetings beyond what was scheduled. IAF, Tab 27 at 14-15. Even assuming
                                                                                          6

¶9         The appellant also argues that the administrative judge erred by relying on
      the case, Melnick v. Department of Housing & Urban Development, 42 M.S.P.R.
      93 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table), for the proposition that
      a 30-day PIP is reasonable because the appellant there had relatively simple
      clerical tasks as a GS-5 Secretary, whereas her GS-14 position entailed complex
      assignments requiring more time. PFR File, Tab 1 at 7; see ID at 8. Although
      she is correct to distinguish Melnick based on the difference in position and
      nature of duties, we find that the administrative judge properly cited to the case
      as an example of where the Board found that a 30-day PIP was reasonable. The
      administrative judge considered other factors in finding that the 34-day PIP was a
      reasonable period to demonstrate improvement, such as the appellant’s significant
      experience, her high-level position, and the fact that she had known about the
      assignments since May 13, 2013. ID at 9; see IAF, Tab 1 at 14-17; see also Lee,
      115 M.S.P.R. 533, ¶ 32; Satlin, 60 M.S.P.R. at 225. Because we agree with the
      administrative judge that the duration of the 34-day PIP was reasonable, we find
      that the agency did not err in denying the appellant’s requests for additional or
      alternative hours to work on the overall PIP.        We also note that the agency
      granted   the   appellant’s   requests   for   extensions   to   complete   individual
      subcomponents of the critical elements. IAF, Tab 7 at 65-70, 73-75. For all these
      reasons, we agree with the administrative judge’s finding that the agency
      provided the appellant an adequate opportunity to demonstrate acceptable
      performance.
¶10        The appellant further claims that the administrative judge erred in finding
      that her performance in Critical Elements 1, 2, and 3 was unacceptable. PFR File,
      Tab 1 at 13-16; see ID at 10-17. Specifically, she alleges that the administrative
      judge failed to consider the facts as presented in her affidavit. PFR File, Tab 1


      that the appellant wanted to meet with her supervisor more often than twice a week, we
      find that the agency provided sufficient assistance to the appellant under the
      circumstances. See PFR File, Tab 1 at 7.
                                                                                       7

      at 13-16; see IAF, Tab 24 at 24-32. She also disagrees with the administrative
      judge’s determination that she did not submit the report required under Critical
      Element 1 on what specific actions were required for the Bureau of Naval
      Personnel to become compliant with Navy EEO guidelines by the September 30,
      2013 deadline.    PFR File, Tab 1 at 14; see IAF, Tab 7 at 77-78.              The
      administrative judge found that the appellant submitted an initial report, but
      failed to submit an updated report implementing the agency’s suggestions and
      corrections. ID at 11-12; see IAF, Tab 7 at 69. The appellant further disputes the
      administrative judge’s finding that the agency required the appellant to submit a
      final executive Sunshine presentation under Critical Element 2 instead of a draft,
      as stipulated in the PIP.    PFR File, Tab 1 at 15; see IAF, Tab 7 at 78.      The
      administrative judge found that the PIP required the Sunshine presentation to be
      of an acceptable quality, which the appellant’s draft presentation did not meet.
      ID at 13-14. We find that the appellant has not adequately explained why the
      administrative judge’s factual findings are incorrect and how such factual errors
      are material, or of sufficient weight to warrant an outcome different from that of
      the initial decision.       See 5 C.F.R. § 1201.115.     We also find that the
      administrative judge properly considered the appellant’s affidavit because she
      thoroughly discussed it in the initial decision. ID at 11, 13, 15-17. Therefore, we
      agree with the administrative judge that the agency proved the appellant’s
      unacceptable performance.
      The administrative judge properly found that the appellant failed to prove a
      violation of due process.
¶11        Further, the appellant alleges that the administrative judge failed to apply
      the proper legal basis to her claim of a due process violation. PFR File, Tab 1
      at 10-12. She contends that she was denied a meaningful opportunity to reply to
      the proposed removal because the agency denied her access to “her work product
      and other related information stored in her computer” by placing her on
      administrative leave at the same time as proposing her removal. Id. at 10. The
                                                                                       8

      appellant argues that the administrative judge erred in finding not credible the
      appellant’s allegation that she requested access to materials on her computer. Id.
      at 11; see ID at 19.    She further claims that the administrative judge limited
      discovery on the due process claim to requests for admissions, further preventing
      her from having full access to her computer records. PFR File, Tab 1 at 12; see
      IAF, Tab 18.
¶12         The administrative judge considered the appellant’s due process arguments
      and found that she had received all of the documents supporting the proposed
      removal. ID at 19; see IAF, Tab 7 at 80, 85, Tab 27 at 10, 16. The administrative
      judge further stated that she was not persuaded that the appellant made a request
      to access her files on the computer because she did not make such a request in her
      written response. ID at 19-20; see IAF, Tab 7 at 82-90, Tab 27 at 11, 16-17, 22,
      24-25. The administrative judge found that the agency afforded the appellant due
      process because the appellant received notice, including the evidence file, and she
      replied orally and in writing to the deciding official. ID at 20.
¶13         The appellant does not provide a reason to dispute the administrative
      judge’s finding that she received due process.      See 5 C.F.R. § 1201.115.   The
      administrative judge properly made a credibility determination consistent with
      Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). In determining
      that the appellant’s assertion that she requested access to materials on her
      computer was not credible, the administrative judge appropriately considered the
      appellant’s written reply as contradictory evidence.         ID at 19; see Hillen,
      35 M.S.P.R. at 458. Further, the administrative judge did not abuse her discretion
      by limiting the appellant’s discovery on the due process claim to requests for
      admissions. See Guzman v. Department of Veterans Affairs, 114 M.S.P.R. 566,
      ¶ 12 (2010) (finding that an administrative judge has broad discretion, including
      the authority to rule on discovery motions); 5 C.F.R. § 1201.41(b)(4). Based on
      our review of the record, we agree with the administrative judge’s finding that the
      appellant failed to prove her claim of a due process violation.
                                                                                          9

¶14        Although we find no due process violation, we still must determine whether
      the agency committed a harmful procedural error. See Stone v. Federal Deposit
      Insurance Corporation, 179 F.3d 1368, 1377-78 (Fed. Cir. 1999) (observing that,
      in addition to the right to due process, “[p]ublic employees are . . . entitled to
      whatever other procedural protections are afforded them by statute, regulation, or
      agency procedure”). Under 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain
      an agency’s decision if the appellant “shows harmful error in the application of
      the agency’s procedures in arriving at such decision.” An agency’s procedural
      error is harmful if it is 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.
      5 C.F.R. § 1201.4(r).   Even assuming that the appellant requested access to
      materials on the computer and the agency denied that request, she has not
      identified a procedure the agency has violated. The agency complied with OPM’s
      required procedures for proposing an action based on unacceptable performance
      by providing the appellant advance notice of the removal and an opportunity to
      answer the proposal notice.      See IAF, Tab 7 at 77-79; see also 5 C.F.R.
      § 432.105(a). Neither has she shown that it is likely that the agency would not
      have removed her had she been granted access to the materials on her computer.
      Therefore, we find that she has not proven a harmful procedural error.
      The administrative judge properly found that the appellant failed to prove her
      affirmative defenses of age and disability discrimination.
¶15        Next,   the   appellant   reiterates   her   claims   of   age   and   disability
      discrimination. PFR File, Tab 1 at 16-22. She does not provide any new and
      material evidence or legal argument, or allege a specific error in the
      administrative judge’s findings that she failed to prove these affirmative defenses.
      See ID at 23; 5 C.F.R. § 1201.115(d). Based on our review of the record, we
      discern no reason to disturb these findings. See Crosby, 74 M.S.P.R. at 105-06.
                                                                                    10

      The administrative judge properly considered the agency’s close of record
      submission.
¶16        Lastly, the appellant alleges that the administrative judge improperly
      considered the agency’s untimely close of record submission and failed to
      respond to the appellant’s motion to strike such evidence.     PFR File, Tab 1
      at 12-13; see IAF, Tabs 25, 27. The administrative judge found that the agency’s
      submission was timely and denied the appellant’s motion to strike. ID at 20. The
      administrative judge stated in the order and summary of the close of record
      conference that each party had until September 5, 2014, to respond to the other
      party’s submission, IAF, Tab 23 at 12-13, and the record shows that the agency
      submitted its response to the appellant’s submission on September 5, 2014, IAF,
      Tab 27. We note, however, that the close of record order compelled both parties
      to submit their initial close of record submissions by August 28, 2014, including
      all evidence and argument related to the issues for which they have the burden of
      proof.   IAF, Tab 23 at 12.   Because the agency has the burden to prove the
      elements of a performance-based removal, we find that the portion of the
      agency’s submission addressing its removal action was untimely because it
      should have been submitted by August 28, 2014. See Lee, 115 M.S.P.R. 533, ¶ 5.
¶17        Although the agency failed to submit a timely close of record submission,
      we find that the Board’s regulations permit a party to submit additional evidence
      or argument after the close of record in rebuttal to new evidence or argument
      submitted by the other party just before the record closed, as occurred in this
      case. See 5 C.F.R. § 1201.59(c)(2). The agency argued in its response to the
      appellant’s motion to strike that she raised new claims regarding her
      performance-based removal that the agency could not have previously addressed.
      IAF, Tab 26 at 5-8.    Although the appellant raised the general issue of her
      performance-based removal in her prehearing submission, IAF, Tab 20, we agree
      with the agency that her close of record submission contained new and detailed
      allegations not previously raised in this appeal, IAF, Tab 24 at 7-11, 24-30.
                                                                               11

Therefore, we find that the administrative judge properly considered the agency’s
submission and denied the appellant’s motion to strike.

                 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.

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
                                                                                   12

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. § 2000e-5(f) and
29 U.S.C. § 794a.




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