                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KENNETH L. MCGOWAN,                             DOCKET NUMBER
                  Appellant,                         DA-0432-13-0598-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: November 20, 2014
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Phillip Davis Helslander, Esquire, Duncanville, Texas, for the appellant.

           Laura J. Carroll, South Burlington, Vermont, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The agency placed the appellant, an Information Technology Specialist, on
     a 60-day performance improvement plan (PIP) effective September 17, 2012,
     based upon its determination that his performance was unacceptable in two of the
     five critical performance goals of his position. Initial Appeal File (IAF), Tab 14
     at 24-29 (performance plan and appraisal), Tab 13 at 82-89 (notice of placement
     on PIP). After extending the PIP for an additional period of time, the agency
     issued the appellant notice that he had not improved his performance during the
     PIP on the two identified critical performance goals, IAF, Tab 13 at 70-75, and it
     proposed to remove him under chapter 43, id. at 4-7.         The deciding official
     imposed the appellant’s removal effective June 28, 2013. IAF, Tab 8 at 13-17.
¶3        The appellant filed an initial appeal challenging his removal and raising
     affirmative defenses of disparate treatment based upon his prior military service
     under the Uniformed Services Employment and Reemployment Rights Act of
     1994 (USERRA), equal employment opportunity (EEO) retaliation, disability
     discrimination, and harmful error. IAF, Tab 1. The administrative judge held a
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     hearing and issued an initial decision affirming the agency’s removal action and
     denying each of the appellant’s affirmative defenses.            IAF, Tab 30, Initial
     Decision (ID).     In his initial decision, the administrative judge found that the
     appellant’s   performance    standards   were    valid,   that   they were    properly
     communicated to the appellant, and that he was given a reasonable opportunity to
     improve his performance.      ID at 4-20.    Additionally, the administrative judge
     found that the agency established by substantial evidence that the appellant’s
     performance at the end of his PIP remained unacceptable in at least one critical
     area, and he further rejected the appellant’s argument that the agency breached
     the collective bargaining agreement when it established the critical elements of
     his position. ID at 18-24, 26-27. Lastly, the administrative judge found that the
     appellant failed to establish any of his affirmative defenses, noting, inter alia, that
     the appellant failed to identify similarly-situated comparator employees and that
     he otherwise failed to show that the legitimate reasons supporting the agency’s
     removal action were pretexts for discrimination based on his prior military
     service, alleged disability, or EEO activity. ID at 25, 27-34.
¶4         The appellant has filed a petition for review arguing that the agency
     committed harmful error by breaching several provisions of the collective
     bargaining agreement. Petition for Review (PFR) File, Tab 1 at 2-8. On review,
     the appellant also argues that the agency issued an “inappropriate, premature
     PIP,” that it wrongfully imposed new critical performance standards during his
     performance period prior to his placement on the PIP and that it failed to provide
     him a meaningful opportunity to improve prior to proposing his removal. Id. at 6,
     9-10, 11. The agency has filed a response in opposition to the petition for review.
     PFR File, Tab 3.
¶5         To prevail in an appeal of a performance-based removal under chapter 43,
     the agency must establish by substantial evidence that: (1) it communicated to the
     appellant 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
                                                                                           4

     agency warned the appellant of the inadequacies of his 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).            Performance standards must, to the
     maximum extent feasible, permit the accurate appraisal of performance based on
     objective criteria.    Id., ¶ 21; 5 U.S.C. § 4302(b)(1).            Standards must be
     reasonable,    realistic,   attainable,    and      clearly      stated   in    writing.
     Towne, 120 M.S.P.R. 239, ¶ 21.        Performance standards should be specific
     enough to provide an employee with a firm benchmark toward which to aim his
     performance, and they must be sufficiently precise so as to invoke a general
     consensus as to their meaning and content.            Id.      An agency may provide
     additional guidance on such performance standards through written and oral
     communication, id., ¶ 23, and chapter 43 performance standards do not have to
     have numerical measurements, Wilson v. Department of Health & Human
     Services, 770 F.2d 1048, 1052 (Fed. Cir. 1985).
¶6        We have reviewed the appellant’s petition for review, along with the
     administrative judge’s thorough initial decision, and we find that the appellant
     has presented no basis on review to disturb the initial decision. We agree with
     the administrative judge that the agency established by substantial evidence that
     the appellant’s performance remained unacceptable in one or more of his critical
     performance areas at the end of his PIP, see IAF, Tab 13 at 70-75 (PIP close out
     notice explaining, for example, that the appellant submitted incomplete
     documents with errors and inaccuracies and that he did not submit weekly written
     updates), and we disagree with the appellant’s argument on review that the
     agency did not provide him a meaningful opportunity to improve during the PIP,
     see PFR File, Tab 1 at 9-10.       The record demonstrates that the appellant’s
     supervisor met with him in person and provided written and oral feedback during
     the PIP and that the agency also assigned the appellant a mentor during the PIP.
                                                                                    5

     IAF, Tab 13 at 70. The Board has found similar offers of assistance during a PIP
     to be adequate in the course of sustaining a performance-based action under
     chapter 43. See, e.g., Towne, 120 M.S.P.R. 239, ¶ 20 (valid offers of assistance
     include meeting with the appellant in person, as well as providing written and
     oral guidance).
¶7        We also have considered the appellant’s argument that the agency
     committed harmful error by establishing the critical performance goals of his
     position during the middle of the yearly appraisal period and that it implemented
     an “inappropriate, premature PIP” after creating those new goals.      PFR File,
     Tab 1 at 2, 6. We find that this argument does not support reversing the agency’s
     performance-based action.       The record reflects that the agency issued the
     appellant notice of the critical performance goals of his position on April 23,
     2012, for the performance appraisal period covering October 1, 2011, through
     September 30, 2012, and that the appellant was given a 6-month period during
     which his performance was measured under these new standards. IAF, Tab 13
     at 4-7 (notice of proposed removal outlining chronology of events). Based upon
     his inadequate performance on two of his critical performance goals during this
     6-month period, the appellant was then placed on a PIP for over 90 days, at the
     end of which his performance remained unacceptable in the same two areas. Id.
     Citing these performance deficiencies, the agency proposed the appellant’s
     removal under chapter 43. Id.
¶8        Our reviewing court has expressly affirmed the validity of such a practice
     under chapter 43, noting that “[t]he period of appraisal of an employee for an
     adverse action and the agency’s appraisal period need not coincide.” Weirauch v.
     Department of the Army, 782 F.2d 1560, 1563 (Fed. Cir. 1986). In Weirauch, the
     Federal Circuit further explained that “the evaluation of an individual employee
     may encompass part of two official agency appraisal periods and may involve
     more than one standard,” provided that the appellant is provided notice of the
     standard prior to the appraisal period at issue, and that the appellant is also
                                                                                      6

     provided an additional period to improve during a PIP prior to the agency
     proposing his removal. Id. Under these standards, we find no error with the
     agency issuing the appellant notice of the critical performance goals of his
     position in April 2012, giving him 6 months to perform under these new
     standards, and then placing him on a PIP for over 90 days prior to proposing his
     removal under chapter 43. See id.; see also Boggess v. Department of the Air
     Force, 31 M.S.P.R. 461, 466 (1986) (the agency cannot simultaneously issue the
     appellant new standards and place the appellant on a PIP based upon those new
     standards).
¶9        The appellant also argues on review that the administrative judge erred in
     rejecting his harmful error affirmative defense based on his dispute, with the
     agency, over whether he was covered by the agency’s collective bargaining
     agreement.    PFR File, Tab 1 at 6.    We agree with the administrative judge,
     however, that the appellant has not established how this alleged error affected the
     appellant’s removal under chapter 43. ID at 26-27; 5 C.F.R. § 1201.56(c)(3).
     The record reflects that a dispute arose during the drafting of the appellant’s
     critical performance goals as to whether he was a member of the agency’s
     bargaining unit and thus entitled to union representation during these meetings.
     ID at 26-27.     Before this dispute was resolved, the agency created and
     implemented the appellant’s April 2012 performance plan. IAF, Tab 14 at 19-29.
     The agency and the local chapter of the American Federation of Government
     Employees, however, subsequently entered into a memorandum of understanding
     in September 2012, just prior to the appellant’s placement on the PIP, “regarding
     the changes to the performance goals of the [performance plan and appraisal] for
     the position of Information Technology Specialist,” IAF, Tab 17 at 6; the record
     further demonstrates that the performance plan agreed to by the agency and the
     local union chapter in September 2012 is identical to the performance plan issued
     to the appellant in April 2012. Compare IAF, Tab 17 at 6-12 (September 2012
     performance plan), with IAF, Tab 14 at 19-29 (April 2012 performance plan). We
                                                                                             7

      therefore concur with the administrative judge that the appellant failed to
      establish a claim of harmful procedural error in connection with either the
      adoption of the appellant’s critical performance elements or the dispute involving
      his status as a bargaining unit employee. ID at 26-27.
¶10         In addition, the appellant suggests on review that the deciding official
      considered information outside of the scope of the notice of proposed removal in
      rendering his decision to remove the appellant. PFR File, Tab 1 at 12. Although
      the appellant identifies this as a potential violation of Article 30 of the collective
      bargaining agreement, 2 id., such a claim, on its face, also raises a question of
      whether the deciding official committed a due process violation under Ward v.
      U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011). Under the Ward/Stone
      line of cases, a deciding official commits a due process violation when, without
      notice to the appellant, he considers new and material information in rendering
      his decision either to sustain the charges or to impose a certain penalty. See id.;
      see also Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
      1374-76 (Fed. Cir. 1999).
¶11         We find that the deciding official committed neither a due process violation
      nor harmful error under the collective bargaining agreement. After the agency
      issued the appellant the notice of proposed removal, the deciding official issued
      the appellant a second letter expressly informing him that he would consider
      certain documents in the course of reviewing his proposed removal and also
      provided the appellant with two sets of these documents and an additional
      opportunity to respond. IAF, Tab 8 at 25-26. Under these facts, we find that the


      2
       Article 30 of the collective bargaining agreement concerns performance-based actions,
      and provides, in part, that, where an action is proposed under that Article, the employee
      or his representative will be provided, upon request, with copies of the documents on
      which the action is based. IAF, Tab 19 at 86. On review, the appellant contends that
      Article 30 “makes it clear that documents provided should be those considered in
      making the proposal, not others, such as documents provided to the Deciding Official to
      bolster or supplement those considered by the Proposer.” PFR File, Tab 1 at 12.
                                                                                        8

      appellant was on notice of the scope of information the deciding official would
      consider in rendering his decision and that he therefore did not violate the
      appellant’s right to due process. Additionally, the deciding official’s letter of
      decision makes clear that the documents provided to the appellant were “the
      material on which the proposal letter was based,” and that this information is
      therefore not new and material information outside of the scope of the notice of
      proposed removal under Ward/Stone. Id. at 13 (emphasis added); see Kolenc v.
      Department of Health & Human Services, 120 M.S.P.R. 101, ¶ 14 (2013) (new
      information is defined as that information beyond the scope of the notice of
      proposed removal).     For these same reasons, we also find that the deciding
      official did not commit harmful error under Article 30 of the collective
      bargaining agreement when considering this information. Our review of these
      documents further confirms that they address the appellant’s performance on the
      same critical performance elements during both his appraisal period and PIP and
      that they were therefore properly considered by the deciding official in reaching a
      decision. See Addison v. Department of Health & Human Services, 46 M.S.P.R.
      261, 265 (1990) (an agency may consider employee performance on the same
      critical element both prior to and during a PIP provided it is within 1 year of the
      notice of proposed removal), aff’d, 945 F.2d 1134 (Fed. Cir. 1991).
¶12        Finally, although the appellant does not specifically address the substance
      of the administrative judge’s decision to deny each of his affirmative defenses,
      the appellant asserts on review that he is not withdrawing “the USERRA and
      disability claims from consideration.” PFR File, Tab 1 at 2. Pursuant to 5 C.F.R.
      § 1201.115, a party filing a petition for review must present specific objections to
      the initial decision and identify the evidence, statute, or regulation which
      demonstrates error. Rasheed v. Department of the Air Force, 7 M.S.P.R. 585, 587
      (1981). Furthermore, before the Board will undertake a complete review of the
      record, the petitioning party must explain why the challenged factual
      determination is incorrect, and identify the specific evidence in the record which
                                                                                     9

      demonstrates the error. Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133
      (1980).   Moreover, where a hearing has been held, and the agency’s adverse
      action has been sustained, the Board’s inquiry proceeds to the ultimate question
      of whether the appellant has met his overall burden of proving discrimination as
      to any of his affirmative defenses.       See, e.g., Mahaffey v. Department of
      Agriculture, 105 M.S.P.R. 347, ¶ 20 (2007).
¶13         Despite the appellant’s failure to present specific objections to the
      administrative judge’s rejection of each of his affirmative defenses, we have
      conducted a review of the administrative judge’s findings and we agree that the
      appellant did not carry his ultimate burden as to any affirmative defense. The
      record reflects that the appellant presented no evidence of any comparator
      employee for the purposes of either his USERRA or his disability-based disparate
      treatment claims nor evidence that he had requested a reasonable accommodation
      prior to his removal.     ID at 25-26, 31-32, 34.      We further agree with the
      administrative judge that the agency’s comprehensive explanation of the
      appellant’s performance deficiencies establishes a legitimate, nonretaliatory
      reason for his removal, and we find that the appellant has presented no evidence
      that the agency’s removal action was motivated by the appellant’s prior EEO
      activity. ID at 30.
¶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
                                                                                   10

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
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
                                                                           11

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.
