                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROSALIND M. ANTHONY,                            DOCKET NUMBER
                   Appellant,                        PH-0432-15-0405-I-1

                  v.

     SOCIAL SECURITY                                 DATE: July 28, 2016
       ADMINISTRATION,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Rosalind M. Anthony, Baltimore, Maryland, pro se.

           Dane Choe, Esquire, and Sandra Jackson, Esquire, Baltimore, Maryland,
             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 her demotion for unacceptable performance under chapter 43.
     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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the administrative 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, 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        Effective October 5, 2014, the agency demoted the appellant from the GS-7,
     Step 7, Legal Administrative Specialist-Benefit Authorizer position to a GS-6,
     Step 8, Administrative Assistant position based on her unacceptable performance
     on the Critical Element of “Engages in Learning.”       Initial Appeal File (IAF),
     Tab 4 at 35-36. This Critical Element required the appellant to: process work
     accurately; successfully complete on-the-job training; seek assistance when
     appropriate; learn to conduct research independently; demonstrate the ability to
     retain material and to apply that material when appropriate; and demonstrate
     progress towards independent completion of work. Id. at 36, 62-66. The agency
     determined that the appellant failed to make adequate progress under this Critical
     Element during a required training and the agency placed her on a 30-day
     Performance Assistance Plan. Id. at 68. After the appellant failed to improve, the
     agency placed her on a 120-day Opportunity to Perform Successfully (OPS) plan.
     Id. at 55-60. The agency subsequently demoted the appellant after determining
     that she failed to demonstrate acceptable performance on the OPS plan under the
     Critical Element of “Engages in Learning.” IAF, Tab 4 at 34-35, 54.
                                                                                          3

¶3         The appellant filed an equal employment opportunity (EEO) complaint with
     the agency challenging her demotion and alleging that the agency discriminated
     against her on the bases of her age, race, and sex. IAF, Tab 6 at 7-27; see IAF,
     Tab 27, Initial Decision (ID) at 6 n.4. After the agency issued a final agency
     decision on the appellant’s EEO complaint, she filed a timely mixed-case appeal
     with the Board challenging her demotion and alleging discrimination based on
     race, sex, and age. IAF, Tab 1; see ID at 6. Based on the written record, the
     administrative judge affirmed the agency’s decision to demote the appellant. 2
     ID at 2.   The administrative judge found that the agency proved all of the
     elements required under chapter 43 to demote the appellant for unacceptable
     performance in the Critical Element of “Engages in Learning,” and that the
     appellant failed to prove her affirmative defenses of discrimination based on age,
     race, and sex. ID at 7-13. The administrative judge also found that the Board has
     no authority to mitigate an agency’s penalty determination taken under
     chapter 43. ID at 13.
¶4         The appellant has filed a petition for review arguing that “there should be a
     closer look at the Age discrimination” claim in her case. Petition for Review
     (PFR) File, Tab 1 at 3. The appellant also appears to argue that she was unable to
     participate in the appeal due to poor representation and that she raised this issue
     before the administrative judge. Id. The agency responded in opposition to her
     petition. PFR File, Tab 3.
¶5         An agency may reduce in grade or remove an employee for unacceptable
     performance pursuant to 5 U.S.C. § 4303 when the agency proves through




     2
       Because the appellant failed to show good cause for her failure to comply with the
     instructions contained in the hearing order, the administrative judge cancelled the
     hearing requested by the appellant and issued a decision based upon the written record.
     ID at 2.
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     substantial evidence 3 that: (1) the appellant’s performance fails to meet the
     established performance standards in one or more critical elements of her
     position; (2) the agency established performance standards and critical elements
     and communicated them to the appellant at the beginning of the performance
     appraisal period; (3) the agency warned the appellant of the inadequacies of her
     performance during the appraisal period and gave her an adequate opportunity to
     improve; and (4) after an adequate improvement period, the appellant’s
     performance remained unacceptable in at least one critical element. See Gonzalez
     v. Department of Transportation, 109 M.S.P.R. 250, ¶ 6 (2008). On review, the
     appellant does not object to the administrative judge’s findings that the agency
     proved that her performance was unacceptable in a critical element of her position
     and that she failed to prove her affirmative defenses of discrimination based on
     sex and race. We therefore affirm those findings.
¶6         On review, the appellant asks the Board to take a closer look at her
     affirmative defense of age discrimination, but she submits no new evidence or
     argument in support of her claim. PFR File, Tab 1 at 3. The appellant claims that
     the administrative judge did not consider an “age chart when [the] class was
     divided.” We disagree. The administrative judge reviewed the data showing that
     6 of the 8 trainees over the age of 40 failed the training, while only 1 of the 7
     trainees under 40 was unsuccessful. Id.; ID at 11-13. The administrative judge
     considered this data troubling, but found that an in-depth review of the evidence
     supported the agency’s position that it did not treat the trainees differently based
     on age. ID at 12.
¶7         In reaching his decision, the administrative judge also considered the
     declaration of a 61-year-old African American woman who explained that the
     trainees experiencing difficulties were put in the same class to provide more

     3
       Substantial evidence is that degree of 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. See 5 C.F.R. § 1201.56(c)(1).
                                                                                           5

     training and assistance to help them improve. ID at 12-13. The administrative
     judge further considered the EEO Report of Investigation into the appellant’s
     claims of discrimination and the exhibits included with her filings. ID at 11-13.
     The      administrative   judge   found   that   the   agency   offered   a   legitimate
     nondiscriminatory reason for dividing the trainees into two classes and that the
     appellant offered no evidence to show that the reason proffered by the agency was
     pretext. ID at 13.
¶8            The administrative judge found, moreover, that the agency applied the same
     objective performance measures to all trainees and did not discriminate in
     deciding who passed and who failed the Benefit Authorizer training. Id. The
     administrative judge determined that the appellant did not claim, and there was no
     evidence to suggest, that the agency applied those standards more rigorously
     when assessing older female trainees or that it intentionally failed those trainees
     despite having met the standard. Id. The administrative judge further found that
     the appellant admitted that she was unable to meet the required standard of
     processing at least five cases a day with a required minimum accuracy rate. Id.
     Based on our review, we find that the appellant has failed to identify any factual
     or legal basis for disturbing the administrative judge’s well-reasoned initial
     decision finding that she failed to prove her affirmative defense of age
     discrimination. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997)
     (stating that there is no reason for disturbing the initial decision where 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).
¶9            Next, the appellant argues on review that she was denied adequate
     representation below and that she informed the administrative judge about this
     issue.     PFR File, Tab 1 at 3.    The appellant, however, is responsible for the
     alleged errors of her chosen representative, except where her diligent efforts to
     prosecute her appeal are thwarted by her representative’s negligence or
                                                                                       6

      malfeasance. Moore v. Department of Veterans Affairs, 80 M.S.P.R. 268, 271
      (1998). The appellant states that, occasionally, her union attorney representatives
      did not “work with” her and that she did not know the law. PFR File, Tab 1 at 3.
      She also asserts that she missed the hearing and a prehearing settlement
      opportunity because of poor representation, and she feels like she “was set up for
      failure.” Id. Having considered the appellant’s arguments, we find that she has
      not shown that her union representatives’ negligence or malfeasance thwarted her
      diligent efforts to prosecute her appeal.
¶10         Moreover, the record reflects that the administrative judge cancelled the
      hearing because the appellant failed to show good cause for her failure to comply
      with the hearing order and submit prehearing submissions and participate in the
      prehearing teleconference. IAF, Tabs 18, 22. The administrative judge rejected
      the appellant’s argument that her noncompliance should be excused because she
      was unable to obtain legal representation. IAF, Tab 22 at 2. The administrative
      judge noted that he informed the appellant at a status conference about her
      obligation to file prehearing submissions, the filing deadline, and the date of the
      prehearing teleconference. Id. The administrative judge also noted that he issued
      the hearing order immediately after the status conference and provided the
      appellant with clear written notice of these obligations. Id. Finally, after the
      administrative judge cancelled the hearing, he allowed the appellant to submit
      additional evidence in support of her appeal, the appellant availed herself of that
      opportunity, and the administrative judge considered these submissions in
      reaching his decision. Id.; ID at 2 n.2. We therefore deny the petition for review
      and affirm the initial decision.
                                                                                 7

                 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 U.S. 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 U.S. 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
                                                                                 8

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:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
