                        NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit


                                        2006-3429


                                     JOHN STRADER,

                                                       Petitioner,

                                             v.


                                DEPARTMENT OF LABOR,

                                                       Respondent.

        Barrie M. Shapiro, Minahan and Shapiro, P.C., of Lakewood, Colorado, for
petitioner.

       Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and
Franklin E. White Jr., Assistant Director. Of counsel were Elizabeth Thomas, and Stephen
C. Tosini, Attorneys.

Appealed from: United States Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


    United States Court of Appeals for the Federal Circuit


                                       2006-3429

                                   JOHN STRADER,

                                                       Petitioner,


                                            v.


                              DEPARTMENT OF LABOR,

                                                       Respondent.




                           DECIDED: August 8, 2007



Before RADER and SCHALL, Circuit Judges, and FARNAN, District Judge. *

PER CURIAM.

                                       DECISION

      John Strader petitions for review of the final decision of the Merit Systems

Protection Board (“Board”), affirming the Department of Labor’s (“agency’s”) demotion

of Mr. Strader for unacceptable work performance.        Strader v. Dep’t of Labor, No.

DE0432050421-I-1 (M.S.P.B. Aug. 15, 2006) (“Final Decision”). We affirm.


      *
              Honorable Joseph J. Farnan, Jr., District Judge, United States District
Court for the District of Delaware, sitting by designation.
                                       DISCUSSION

                                              I.

       Mr. Strader is a workers’ compensation claims examiner for the agency in

Denver, Colorado. His job responsibilities include managing injured workers’ claims

with the dual goals of paying benefits promptly until the work-related condition is

resolved and facilitating the return to duty of workers after injury.

       On July 21, 2004, Mr. Strader was officially notified that he had failed to meet two

of the four critical elements for his position’s performance standard. The notice placed

Mr. Strader on a 90-day performance improvement plan (“PIP”). The PIP outlined the

agency’s expectations for Mr. Strader, explained where he had been underperforming,

instructed him on how he could and should improve his performance, and explained the

assistance management would provide during the PIP period.              Mr. Strader was

informed that he needed to maintain at least a “needs to improve” rating during the PIP

period and for one year after its completion or else he could be subject to removal or

demotion without an additional PIP period.           During the PIP period, Mr. Strader

maintained a performance level of needs to improve or better, as exemplified by his

rating of “effective” in an October 28, 2004 performance appraisal.

       On November 2, 2004, Mr. Strader was place under new performance standards.

Subsequently, Ms. Nigel Strozier, Mr. Strader’s supervisor, concluded that shortly after

his October performance review, Mr. Strader’s performance had deteriorated.              In

reaching her conclusion, Ms. Strozier reviewed eighteen of Mr. Strader’s assigned

cases for the management subcomponent of Critical Element 2. She found that eight of

eighteen, or 44%, had progressed at an acceptable rate, while the needs to improve




2006-3429                                     2
standard required an acceptable rate of 80%. For the decisions subcomponent, Ms.

Strozier’s review found only one of thirteen cases in compliance, or 8%. On April 5,

2005, Ms. Strozier proposed that Mr. Strader be removed for unacceptable performance

of Critical Element 2.

       On June 10, 2005, Mr. Strader was notified of the agency’s decision to demote

him, and on June 26, 2005, Mr. Strader was demoted. He appealed to the Board.

                                           II.

       The administrative judge (“AJ”) to whom the case was assigned entered his

decision based on the written record because Mr. Strader withdrew his request for a

hearing. Strader v. Dep’t of Labor, No. DE0432050421-I-1, slip op. at 1-2 (M.S.P.B.

Mar. 3, 2006) (“Initial Decision”). The AJ found that the agency’s performance appraisal

plan had been approved by the Office of Personnel Management, that the performance

standards were not unreasonably vague, that the agency had demonstrated by

substantial evidence that Mr. Strader had not met the performance standards, and that

the case sampling for comparison with the performance standards was “objective and

systematic.” Id. at 6-10. Accordingly, the AJ affirmed the agency’s decision to demote

Mr. Strader. Id. at 11.

       The Initial Decision became the final decision of the Board on August 15, 2006,

when the Board denied Mr. Strader’s petition for review. Final Decision, at 1-2. This

appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).




2006-3429                                  3
                                          III.

      Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

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

without procedures required law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

      On appeal, Mr. Strader makes essentially two arguments. First, he contends that

he was improperly subjected to “subjective or imprecise” performance standards. In

that regard, he urges that his performance standard was changed because, after the

PIP period, Ms. Strozier began counting errors on a “one” basis instead of a “one-half”

basis, i.e., each error counted twice as much as it did during the PIP period. If this

same standard had been applied during the PIP period, Mr. Strader asserts, his

performance that the agency found acceptable during the PIP period would not have

been acceptable.        Mr. Strader argues that an agency cannot find performance

acceptable and then later find that same performance unacceptable, when it is the focus

of an adverse action.

      Second, Mr. Strader argues that substantial evidence does not support the

finding that, during the post-PIP period, he failed to meet the required performance

standards. Mr. Strader contends that Ms. Strozier’s sampling methodology was not

“objective and systematic.”    Mr. Strader states that Ms. Strozier’s sampling was “a

combination of random sampling, sampling involving particular claims situations, and

sampling certain files or tasks where Ms. Strozier believed she would find acceptable




2006-3429                                  4
work.” Mr. Strader contends that Ms. Strozier only reviewed 1.97% of his work and that

this was not a sufficient sample upon which to conclude that his performance was

unsatisfactory. See Bowling v. Dep’t of Army, 47 M.S.P.R. 379, 384 (1991) (finding a

review of less than 7% of employee’s work insufficient to establish performance).

Further, Mr. Strader asserts that Ms. Strozier based part of her acceptability rate not “on

anything he did after the end of his PIP, but on tasks he did not do during his PIP.”

       We reject Mr. Strader’s arguments. We agree with the Board that any error

relating to the “one” basis change was harmless. Initial Decision, at 8-9. Mr. Strader’s

performance was sufficiently below the required level that even if the basis had

remained the same, Mr. Strader’s performance was still unsatisfactory. As noted, for

the decisions subcomponent of Critical Element 2, Ms. Strozier found twelve of the

thirteen cases were deficient, which fell well below the 80% performance standard

regardless of whether the errors were counted on a one or one-half basis. Id. Because

Mr. Strader’s performance would have failed under the one-half basis, we need not

address whether the agency’s approach created a situation in which performance that it

previously had found acceptable subsequently was found unacceptable. See King v.

Gen. Servs. Admin, 26 M.S.P.R. 2, 4 (1984).

       As for Ms. Strozier’s sampling method claim, we see no reason to disturb the

Board’s decision. Initial Decision, at 9. The Board found that the sample size was large

enough to evaluate the body of Mr. Strader’s post-PIP work. Id. This finding is not

arbitrary or capricious, as Ms. Strozier reviewed 13 out of 134 cases available for the

decisions subcomponent of Critical Element 2—almost 10%. Also, the Board explained

how some of the errors that were found may have originated during the PIP period but




2006-3429                                   5
were still properly counted as errors after the PIP period: “I agree . . . with the agency’s

cogent argument that, although some of the appellant’s errors were initially made during

the PIP, they were either perpetuated into the post-PIP period by [Mr. Strader’s]

continuing failure to take requisite action or constituted new errors altogether (e.g., each

45 days in which no required action is taken by a Claims Examiner counts as a new

error).” Id. at 9-10.

       We have considered Mr. Strader’s other arguments and have found them to be

without merit.

       For the forgoing reasons, the final decision of the Board is affirmed.

       No costs.




2006-3429                                    6
