                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSEPHLOC T. NGUYEN,                            DOCKET NUMBER
                   Appellant,                        SF-0432-13-0585-I-2

                  v.

     DEPARTMENT OF HOMELAND                          DATE: October 21, 2014
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Josephloc T. Nguyen, Garden Grove, California, pro se.

           Meredith A. Johnson, Long Beach, California, 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 the agency’s action demoting him. 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 interpretation of statute or

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2         The appellant filed an appeal from the agency’s decision to demote him
     from the position of Import Specialist, GS-11, to Customs and Border Protection
     (CBP) Technician, GS 7, for unacceptable performance.              Initial Appeal File
     (IAF-1), Vol. 1, Tab 1. 2 On February 27, 2012, the appellant joined Team 723 (a
     commodities team that focuses on footwear, handbags, and luggage), where his
     duties were to enforce trade laws and regulations for commercial shipments;
     recommend seizure, penalties, and/or fines; classify and verify classifications and
     appraisement of shipments based on documents or samples of goods in the
     shipment; and handle requests for refunding duties or changing classifications
     among other duties. IAF-1, Vol. 4, Tab 4 at 148-52 of 158. The appellant’s
     immediate supervisor, the Supervisory Import Specialist, testified that the
     appellant also received additional intensive training, which took the appellant
     almost 3 weeks instead of 3 days to complete, due to his repetitive errors in
     classification. IAF-2, Vol. 2, Tab 7, Hearing Compact Disc (CD) (Dondero). The

     2
        The administrative judge dismissed the appellant’s first-filed appeal without
     prejudice, and the appeal was automatically refiled. The record in the first-filed appeal
     is cited herein as IAF-1, and the record in the refiled appeal is cited as IAF-2.
                                                                                    3

     appellant was counseled on April 20, 2012, when he was not showing sufficient
     progress in learning the duties of the position. IAF-1, Vol. 3, Tab 10 at 46-48.
     When the appellant’s performance did not improve in shoe classifications, he was
     provided new training relating to handbags and luggage, but he continued the
     same classification issues that he had with shoes. IAF-1, Vol. 2, Tab 7, Hearing
     CD (Dondero). On July 12, 2012, the appellant was issued a letter placing him on
     a 60-day Employee Proficiency Plan (EPP), the agency’s formal performance
     improvement plan (PIP), based on his unacceptable performance in the three
     critical areas of Job Knowledge, Technical Skills, and Professionalism. IAF-1,
     Vol. 4, Tab 4 at 123-29 of 158.          On October 19, 2012, the appellant’s
     performance was rated unacceptable in the three critical competency areas, and on
     January 31, 2013, the agency proposed that he be demoted to the position of CBP
     Technician, GS-7, for unacceptable performance in Job Knowledge, Technical
     Skills, and Professionalism. IAF-1, Vol. 2, Tab 4 at 79-101 of 243. The Director
     of Field Operations sustained the demotion on May 29, 2013, and it became
     effective on June 2, 2013. Id. at 66-68 of 243.
¶3        On appeal, the appellant challenged his placement on the EPP and argued
     that he was not provided a reasonable opportunity to improve. He also claimed
     that he was subject to a hostile work environment and demoted because of
     discrimination based on his race (Asian), national origin (Vietnamese), and sex
     (male), and in retaliation for having engaged in both union and for equal
     employment opportunity activity. IAF-1, Vol. 1, Tab 1, Vol. 3, Tab 9.
¶4        Here, after thoroughly discussing the record evidence regarding the element
     of Job Knowledge and the five specifications in which the agency identified as
     unacceptable performance, the administrative judge found that the appellant
     failed to perform successfully in at least one critical element, Job Knowledge.
     IAF-2, Vol. 1, Tab 8, Initial Decision (ID) at 9-16.           Specifically, the
     administrative judge found that, based on the detailed documentation and the
     consistent and thorough testimony of the appellant’s immediate supervisor, the
                                                                                     4

     agency proved all five specifications of that charge by substantial evidence.
     Thus, the administrative judge determined that the appellant performed
     unsuccessfully in one critical element and sustained the charge.       ID at 16.
     Because the administrative judge determined that the appellant performed
     unsuccessfully in one critical element, she did not address the remaining critical
     elements. ID at 16. In addition, the administrative judge found that the appellant
     failed to prove his affirmative defenses and by preponderant evidence. Thus, the
     administrative judge affirmed the agency’s action.
¶5        On review, the appellant has raised numerous allegations that the EPP
     process was flawed and that the administrative judge made errors in sustaining
     the charge and affirming the demotion action. Petition for Review (PFR) File,
     Tab 1. We have considered the appellant’s arguments on review; however, we
     discern no reason to reweigh the evidence or substitute our assessment of the
     record evidence for that of the administrative judge. 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).
¶6        In addition, the appellant argues, inter alia, that the administrative judge
     erred because she only made findings concerning one of the three critical
     elements for which he was charged with unacceptable performance. PFR File,
     Tab 1. The appellant asserts that, because the administrative judge did not make
     findings on all three critical elements, she failed to undertake a complete review
     of the record prior to issuing her decision. See id. at 12. However, the Board has
     held that, in chapter 43 performance cases, an agency’s submission of substantial
     evidence showing that the employee’s performance was unacceptable in one
     critical element will result in a final disposition of the case.   The failure to
     consider performance under other critical elements has no impact on the overall
                                                                                       5

     disposition of the appeal because there is no possibility of mitigation and, hence,
     no need to consider cumulative evidence of unacceptable performance.            See
     Stein–Verbit v. Department of Commerce, 72 M.S.P.R. 332, 339–40 (1996); see
     also Towne v. Department of the Air Force, 120 M.S.P.R. 239, ¶ 29 n.12 (2013)
     (the failure to demonstrate acceptable performance under a single critical element
     will support removal under chapter 43).
¶7        The appellant further contends that the administrative judge erred in finding
     that he was provided a reasonable opportunity to improve and he argues that the
     60-day improvement period was too short. However, the Board has found that
     even a 30-day PIP can satisfy an agency’s obligation to provide an employee with
     a reasonable opportunity to demonstrate acceptable performance.             Towne,
     120 M.S.P.R. 239 at ¶ 10; Lee v. Environmental Protection Agency, 115 M.S.P.R.
     533, ¶ 33 (2010).       Thus, even though the appellant disagrees with the
     administrative judge’s determination that a 60-day improvement period is
     reasonable, he has shown no error by the administrative judge.
¶8        The appellant also argues that the administrative judge failed to discuss the
     testimony of all of the witnesses, and thus, she erred regarding her findings on his
     affirmative defenses.     Specifically, the appellant contends that testimony
     supporting his claim of an “unhealthy working environment” was not discussed in
     the initial decision.   He also asserts that the administrative judge failed to
     mention testimony from two other witnesses concerning two critical elements not
     addressed by the administrative judge. PFR File, Tab 1 at 12. However, the
     administrative judge’s failure to mention all of the evidence of record does not
     mean that she did not consider it in reaching her decision.            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). In this case, the administrative judge
     thoroughly analyzed the appellant’s affirmative defenses and found that he failed
     to prove them by preponderant evidence. ID at 19-23. We find no basis upon
                                                                                        6

      which to disturb the administrative judge’s findings and determinations on these
      issues.
¶9          The appellant also asserts that the administrative judge erred by issuing an
      “oral ruling” prior to the start of the hearing. The appellant appears to be arguing
      that the administrative judge was procedurally required to include such a ruling in
      the initial decision. PFR File, Tab 1 at 12. The record reflects that the appellant
      filed an objection to the administrative judge’s ruling in a prehearing order dated
      December 6, 2014, when the administrative judge did not approve his request to
      have his medical bills and doctors’ notes approved as evidence. IAF-2, Vol. 1,
      Tabs 3, 5. Based on the appellant’s written objection, the administrative judge
      reconsidered her ruling prior to the start of the hearing and reaffirmed that the
      exhibit was not admitted.     IAF, Vol. 2, Tab 7, Hearing CD.        However, the
      administrative judge held further that, if she ruled in the appellant’s favor on his
      discrimination claims and a subsequent case would need to be opened for
      compensatory damages, it would be appropriate to consider the medical evidence
      at that time. Id. We find that these actions fall within the administrative judge’s
      broad scope of authority and discretion to control the proceedings before her and
      the appellant’s challenges fail to warrant reversal of the initial decision. See,
      e.g., Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 20
      (2014) (seeking to strike the testimony of an agency witness not included in the
      initial disclosures but named in the agency file and challenging both the inclusion
      and the exclusion of documents in the agency file).
¶10         In addition, the appellant asserts that the agency’s Assistant Chief Counsel
      threatened him that, if he filed age and disability claims, the Assistant Chief
      Counsel would “interfere” with his appeal.       PFR File, Tab 1 at 6, 15.      The
      appellant contends that he was afraid to raise these arguments earlier on appeal.
      Id. However, the appellant has made no showing that these arguments are based
                                                                                          7

      on new and material evidence not previously available despite his due diligence. 3
      Nor has the appellant provided any evidence to support his bare assertions. Id.
      Moreover, the record reflects that, to the extent any of the appellant’s claims
      below could be interpreted as age or disability discrimination claims, he withdrew
      those claims. IAF-1, Vol. 3, Tab 12; ID at 7 n.4.
¶11         Finally, the appellant, who is an e-filer, appears to be asserting that the
      administrative judge erred by issuing the initial decision without including his
      name on the certificate of service. PFR File, Tab 1 at 13. However, the record
      includes the certificate of service, which acknowledges that the Board served the
      appellant the initial decision by electronic mail. IAF-2, Vol. 1, Tab 9. Moreover,
      the appellant does not appear to argue that he did not timely receive the initial
      decision but only that his name was not included on the electronic certificate of
      service when he received it. PFR File, Tab 1 at 13. Thus, even if we were to find
      that a procedural error occurred based on the appellant’s name not appearing on
      the electronic certificate of service, such error is of no legal consequence because
      he has not shown that it adversely affected his substantive rights. Karapinka v.
      Department of Energy, 6 M.S.P.R. 124, 127 (1981).
¶12         In sum, while the appellant disagrees with the administrative judge’s
      findings and determinations in this case, he has shown no basis upon which to
      disturb the initial decision.

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




      3
        See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (under 5 C.F.R.
      § 1201.115, the Board will not consider arguments or evidence submitted for the first
      time with a petition for review absent a showing that they were unavailable before the
      record was closed despite the party’s due diligence).
                                                                                    8

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
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
                                                                                  9

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.




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