                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HAYS C. HUSSEY,                                 DOCKET NUMBER
                   Appellant,                        DA-0432-13-0237-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: August 7, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Hays C. Hussey, Mandeville, Louisiana, pro se.

           Sandy S. Francois and Thomas E. Dunn, New Orleans, Louisiana, 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 removal decision for unacceptable performance. 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant held the position of Information Technology (IT) Specialist,
     GS-12, with the agency’s National Finance Center, Information Technology
     Division.   Initial Appeal File (IAF), Tab 5 at 9.     In October 2012, the agency
     informed the appellant that it found his performance to be unacceptable in three
     performance elements and placed him on a 60-day performance improvement plan
     (PIP). 2 Id. at 65-70, 83-88. The agency identified the three critical elements as:
     (1) mission accomplishment, (2) security and continuity of operations, and
     (3) communications. Id. at 65-68. During the PIP, the appellant met weekly with
     his supervisor to review his progress. Id. at 45. The agency determined that the
     appellant did not successfully complete the PIP and continued to perform at an
     unacceptable level on two performance elements, mission accomplishment and
     communications, and proposed his removal. Id. at 45, 56. The deciding official



     2
       The agency reissued the PIP to the appellant 11 days after the first PIP document was
     issued due to errors in the original documentation. Id. at 65-70, 83-88.
                                                                                         3

     sustained the decision to remove the appellant for unacceptable performance. Id.
     at 10.
¶3            The appellant filed a Board appeal challenging his removal, alleging that
     the agency interfered with the training for his position. IAF, Tab 1 at 4, 6. The
     appellant claimed harmful error and retaliation for his prior Board and equal
     employment opportunity (EEO) activity. 3 Id. at 4-6. The administrative judge
     conducted a hearing and issued an initial decision that affirmed the agency’s
     removal action. IAF, Tab 26, Initial Decision (ID) at 1. The administrative judge
     also found that the agency’s action was not the result of reprisal for prior Board
     and EEO activity or harmful error. ID at 19.
¶4            The appellant has filed a timely petition for review. Petition for Review
     (PFR) File, Tab 1. The appellant restates his arguments that his removal was in
     reprisal for his prior Board activity and that the agency interfered with his
     performance so he could not complete his duties. Id. at 1-2; IAF, Tab 1 at 6. The
     agency has responded in opposition to the appellant’s petition for review. PFR
     File, Tab 3.

     The agency’s performance standards were approved by the Office of Personnel
     Management (OPM), were valid, and communicated to the appellant, and the
     appellant was informed that his performance was deficient in at least one
     critical element.
¶5            To prevail in an appeal of a performance-based removal under chapter 43,
     the agency must establish by substantial evidence that: (1) OPM approved its
     performance appraisal system and any significant changes thereto; (2) the agency
     communicated to the appellant the performance standards and critical elements of
     the position; (3) the appellant’s performance standards are valid under 5 U.S.C.


     3
       The appellant further alleged a failure to restore/reemploy/reinstate or improper
     restoration/reemployment/reinstatement.     IAF, Tab 1 at 4. During a subsequent
     conference call, the appellant stated he did not have a compensable injury and was not
     appealing a failure to restore/reemploy/reinstate or improper restoration/
     reemployment/reinstatement. IAF, Tab 17 at 1 n.1.
                                                                                             4

     § 4302(b)(1); (4) the agency warned the appellant of the inadequacies of his
     performance during the appraisal period and gave him 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 he was
     provided an opportunity to demonstrate acceptable performance.                    Lee v.
     Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 5 (2010).               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. § 1201.56(c)(1). If the
     action is supported by substantial evidence, the Board will sustain the action
     unless the appellant shows by a preponderance of evidence that: (1) the agency
     committed harmful procedural error in its decision; (2) the decision was based on
     a prohibited personnel practice under 5 U.S.C. § 2302(b); or (3) the decision was
     not in accordance with law. Lee, 115 M.S.P.R. 533, ¶ 6.
¶6         The administrative judge found that OPM approved the agency’s
     performance management system, that the performance standards were valid and
     communicated to the appellant, and that the appellant was informed that his
     performance was deficient in at least one critical element. ID at 5, 7 and 13. The
     appellant has not challenged any of these findings in his petition for review. 4 We
     see no basis to disturb them on review and adopt them as the final decision of
     the Board.




     4
       Though the appellant does not challenge the validity of the performance standards, he
     does argue that his position was not that of a system administrator but instead a data
     entry clerk. PFR File, Tab 1 at 2. However, the appellant repeatedly stated that he
     needed training to learn to do his GS-12 IT Specialist job. IAF, Tab 5 at 15, 43. The
     appellant’s union representative also stated during the appellant’s response to the
     deciding official that the appellant was placed in one of the most technical jobs in the
     group. Id. at 43. Based on the agency’s evidence, the appellant’s job was more
     technical in nature than a data entry position as the appellant has alleged. Id. at 46-52.
                                                                                             5

     The agency provided the appellant with a reasonable opportunity to improve his
     performance, but his performance remained unacceptable in two elements.
¶7         The employee’s right to a reasonable opportunity to improve is a
     substantive right and a necessary prerequisite to all chapter 43 actions. Towne v.
     Department of the Air Force, 120 M.S.P.R. 239, ¶ 8 (2013).               In determining
     whether the agency has afforded the appellant a reasonable opportunity to
     demonstrate acceptable performance, relevant factors include the nature of the
     duties and responsibilities of the appellant’s position, the performance
     deficiencies involved, and the amount of time that is sufficient to enable the
     appellant to demonstrate acceptable performance. Id. The Board has found that a
     30-day PIP can satisfy an agency’s obligation to provide an employee with a
     reasonable    opportunity    to   demonstrate      acceptable    performance.        Lee,
     115 M.S.P.R. 533, ¶ 33.        The agency issued the PIP for 60 days, and the
     appellant’s supervisor met with him and reviewed his progress on a weekly basis
     during the PIP. IAF, Tab 5 at 69.
¶8         The appellant argues that the agency resisted his return to work, which
     resulted from the settlement of prior claims, by denying him resources and
     refusing to support him in his new duties and that their actions interfered with his
     performance. 5 PFR File, Tab 1 at 1-2; IAF, Tab 1 at 6. However, he provides no
     evidence of what resources he was denied or how his supervisor prevented him
     from performing his job. The appellant continues to argue in his petition for
     review that the agency denied him training to enable him to learn the duties of his
     new position. Id. at 1. The Board has found that an agency is not required to
     provide an employee with any formal training as part of an opportunity to

     5
       The administrative judge properly advised the appellant that any issues the appellant
     had regarding the agency’s compliance with a prior settlement agreement were to be
     raised through a petition for enforcement of the prior Board appeal and not as part of
     the present appeal. IAF, Tab 17 at 1-2 n.1; see Nease v. Department of the Army,
     68 M.S.P.R. 365, 367 (1995) (the proper method to attack the validity of a settlement
     agreement is a petition for review of the initial decision that dismissed the appeal based
     on the settlement agreement).
                                                                                      6

     improve under a PIP. Corbett v. Department of the Air Force, 59 M.S.P.R. 288,
     290 (1993). However, if an agency promises an employee assistance during a PIP
     and both fails to do so and otherwise prejudices the appellant or hinders his
     chances to succeed, then it does not meet its burden of proving that it provided
     the employee with an opportunity to improve. Id. Here, the appellant alleges that
     the agency refused to provide him training to learn his new position. PFR File,
     Tab 1 at 1. However, the appellant’s supervisor testified that the appellant had
     the opportunity to receive on-the-job training from a former coworker for
     approximately nine months to learn to do the job prior to being placed on the PIP.
     Hearing Compact Diskette (HCD). The supervisor testified that no IT Specialists
     received offsite training during the appellant’s time in the work group due to a
     limited training budget. Id. The appellant attempted to challenge the testimony
     at the hearing, stating that he had seen training materials as evidence that others
     had received outside training. Id. Yet he provided no documentary evidence of
     offsite training materials and was unable to state whether the training occurred
     during this same time frame or at another point in time. Therefore, we find the
     agency was under no obligation to provide outside training to the appellant during
     his PIP.
¶9         Where, as here, an appellant’s performance was unacceptable on one or
     more, but not all, components of a critical element, the agency must show by
     substantial evidence that the appellant’s performance warranted an unacceptable
     rating on the element as a whole. Adkins v. Department of Housing & Urban
     Development, 781 F.2d 891, 895 (Fed. Cir. 1986).        An important function of
     performance standards is to ensure that employees understand both their agencies’
     expectations of them and the consequences of their failure to meet these
     expectations.   Shuman v. Department of the Treasury, 23 M.S.P.R. 620, 628
     (1984). The evidence presented by the agency thus should demonstrate that the
     appellant knew or should have known the significance of the component or
     components at issue, in addition to demonstrating that the appellant’s deficiencies
                                                                                        7

      are significant enough to justify the action the agency has taken. Id. at 628-29.
      The evidence may include a showing of the importance of the component or
      components in relation to the duties and responsibilities with which the critical
      element as a whole is concerned. Id. at 629.
¶10         Here, we find the appellant was aware of the significance of the components
      at issue.    The agency’s PIP letter informed the appellant of the specific
      deficiencies in each critical element, using the language from the performance
      standard.    IAF, Tab 5 at 65-68.     The agency’s PIP letter only references
      components of the performance standard where the agency found deficiencies.
      Id. The PIP letter notified the appellant that his performance was unsatisfactory
      in the three elements. Id. at 65. The agency also notified the appellant of the
      significance of these components when it informed him that if he did not
      successfully complete the PIP he would be demoted or removed from his position.
      Id. at 70.   Hence, we find that the appellant was sufficiently notified that his
      continued unsatisfactory performance in these components of the performance
      standard would result in an unacceptable rating for the critical element. See, e.g.,
      Smallwood v. Department of the Navy, 52 M.S.P.R. 678, 683-84 (1992) (finding
      that the agency properly notified the appellant at the beginning of the PIP that
      unacceptable performance for one component of the performance rating would
      warrant a rating of unacceptable for the element as a whole and that he could be
      removed if his performance was not at a minimally acceptable level).
¶11         The agency met its burden of proving by substantial evidence that the
      appellant’s performance was unacceptable for the critical element of mission
      accomplishment.      Specifically, the PIP identified, among the appellant’s
      deficiencies in this element, his inability to complete tasks accurately or on time.
      IAF, Tab 5 at 65-67. The appellant’s supervisor testified at the hearing about the
      role of the appellant’s department and the National Finance Center, which
      processes payroll for various military and civilian agencies.          HCD.     The
      appellant’s supervisor also commented on the need for accuracy to avoid any
                                                                                       8

      misdelivery of personally identifiable information. IAF, Tab 5 at 46. The agency
      provided multiple examples of assignments not completed in a timely or proper
      fashion relating to the critical element of mission accomplishment. Id. at 46-52.
      The appellant’s supervisor noted that for the daily routine monitoring task, the
      appellant was timely in the completion of his duties only 13 of the 35 days of the
      PIP.    Id. at 46.   The appellant’s response to this task was that there was
      “mischief” occurring, that his reports were being blocked, and that other staff
      could not identify which reports were blocked. Id. at 18, 42. The appellant did
      not complete tasks assigned during the PIP, such as task ten, where he was
      directed to conduct an analysis and submit recommendations based on a vendor
      recommendation. Id. at 52. The appellant’s response did not address the vendor
      recommendation or follow his supervisor’s instructions, advising only that the
      analysis was not necessary. Id. However, the appellant himself had raised the
      issue based on high system utilization. Id.
¶12          The agency also demonstrated by substantial evidence the appellant’s
      unacceptable performance for the critical element of communications. During the
      PIP, the appellant was involved in two incidents that led to management
      intervention. IAF, Tab 5 at 53-54. Both incidents involved allegations of the
      appellant seeking assistance by asking coworkers to cover for him or assist him
      because he believed he was going to be terminated. Id. at 176-78. Clearly these
      incidents do not comport with the components of the performance standard that
      focus on appropriate workplace communications, resolving disputes with proper
      conflict resolution tools, and participating as a team player to accomplish the
      organization’s mission. Id. at 53. The appellant’s PIP advised him that these
      standards were all part of the critical element of communication. Id. at 68.
¶13          The appellant alleges that the agency interfered with his ability to
      communicate with his coworkers.       PFR File, Tab 1 at 1.    However, the only
      evidence in the record of the agency limiting the appellant’s communications was
      the incident involving the programming staff from another department.          IAF,
                                                                                           9

      Tab 5 at 53.     The appellant’s supervisor had previously directed him to seek
      information from this group by email, yet the appellant went into the work area.
      Id. at 81, 176.      These visits resulted in an email from that group asking
      management to stop sending over the appellant. Id. at 81, 176. We do not find,
      under      the    circumstances,     that    the    agency      interfered   in    the
      appellant’s communications.
¶14           We find the agency proved that the appellant’s performance was
      unacceptable in at least one critical element. As a result, the Board may not
      mitigate the agency’s removal action unless the appellant demonstrates by
      preponderant evidence that the agency committed harmful procedural error, the
      decision was based on a prohibited personnel practice under 5 U.S.C. § 2302(b),
      or the decision was not in accordance with law.            Lisiecki v. Merit Systems
      Protection Board, 769 F.2d 1558, 1566-67 (Fed. Cir. 1985); 5 C.F.R.
      § 1201.56(b).

      The appellant failed to prove his affirmative defenses of harmful error and
      retaliation for EEO and MSPB activity.
¶15           The administrative judge found that the appellant did not prove his
      affirmative defenses of harmful error and retaliation. ID at 15-19. The appellant
      does not raise the harmful error claim in his petition for review. PFR File, Tab 1.
      Because the appellant has not raised the claim on review and our review of the
      initial decision finds no error with administrative judge’s finding, we adopt this
      finding as the Board’s final decision on this issue.
¶16           In his petition for review, the appellant continues to allege that the agency’s
      action was in reprisal for his prior Board activity. 6 Id. at 1. To prevail on a claim

      6
        The appellant also argues that the administrative judge improperly limited the
      evidence he could present on appeal and did not permit him to provide evidence that the
      agency’s management, human resources, and labor relations groups refused to hear his
      complaints about his supervisor and chain of command. PFR File, Tab 1 at 1. The
      appellant states he was directed to take his complaints through the EEO process. Id.
      There is no evidence that the appellant filed an EEO complaint regarding his removal,
      though he submitted evidence of other EEO complaints that he filed with the agency.
                                                                                         10

      of illegal retaliation based on prior Board or EEO activity, the appellant has the
      burden of showing that: (1) he engaged in a protected activity; (2) the accused
      official knew of the protected activity; (3) the adverse action under review could
      have been retaliation under the circumstances; and (4) there was a genuine nexus
      between the alleged retaliation and the adverse action. New v. Department of
      Veterans Affairs, 82 M.S.P.R. 609, ¶¶ 15-16 (1999). To establish a genuine nexus
      between the protected activity and the adverse employment action, the appellant
      must prove that the employment action was taken because of the protected
      activity. Oulianova v. Pension Benefit Guaranty Corporation, 120 M.S.P.R. 22,
      ¶ 14 (2013). Where, as here, the record is complete on the issue of retaliation, the
      Board’s inquiry proceeds to the ultimate question of whether, upon weighing the
      evidence presented by both parties, the appellant has met his overall burden of
      proving retaliation by preponderant evidence. Dwyer v. Department of Veterans
      Affairs, 107 M.S.P.R. 632, ¶ 7 (2008).
¶17        As the administrative judge noted in her initial decision, it is undisputed
      that the appellant engaged in protected activity, that his supervisors knew of the
      protected activity, and that his removal could have been retaliatory under the
      circumstances. ID at 17. To show retaliation, as the appellant attempts to do
      here, based on circumstantial evidence, he must demonstrate a “convincing
      mosaic” of retaliation against him. Agbaniyaka v. Department of the Treasury,
      115 M.S.P.R. 130, ¶ 16 (2010), aff’d, 484 F. App’x 545 (2012). The appellant
      provided no evidence that his supervisor or the deciding official had any reason to
      retaliate based on his prior protected activity.       The appellant also did not

      IAF, Tab 19. The appellant alleges that his complaints were related to his reprisal
      claim. PFR File, Tab 1 at 2. Therefore, agency management directed him to the same
      venue where his other reprisal complaints were filed. See IAF, Tab 19 (record of other
      EEO reprisal complaints filed by the appellant). We decline to find that the agency’s
      direction to the appellant regarding where to file his EEO complaints is evidence of
      reprisal.    See 29 C.F.R. § 1614.102(b)(7) (requiring agencies to publicize the
      availability of EEO counselors, and provide them with notice of the “necessity of
      contacting a Counselor before filing a complaint”).
                                                                               11

demonstrate that any similarly situated employee was treated differently.
However, the agency did prove the appellant’s performance was unacceptable in
the two critical elements, and the appellant has presented no evidence that this
legitimate, nondiscriminatory action for his removal was pretextual.          See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973) (setting forth
the parties’ shifting burdens in a Title VII case). Accordingly, we find that the
appellant did not prove his affirmative defense of retaliation for engaging in
protected activity, and we affirm the agency’s action.

                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
                                                                                   12

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
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.
