               NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
                     citable as precedent. It is a public record.


 United States Court of Appeals for the Federal Circuit
                                     05-3002, -3003


                                    NEDRA P. FAIN,

                                                            Petitioner,

                                            v.

                            DEPARTMENT OF EDUCATION,

                                                            Respondent.


                             __________________________

                             DECIDED: November 16, 2005
                             __________________________



Before MICHEL, Chief Judge, SCHALL and GAJARSA, Circuit Judges.

PER CURIAM.

         Nedra P. Fain (“Fain”) seeks review of the decision of the Merit Systems

Protection Board (“Board”), affirming her removal by the Department of Education

(“Department”) from her position as an Equal Opportunity Specialist, Office of Civil

Rights    (“OCR”),   for   unacceptable   performance.     Fain   v.      Dep’t   of   Educ.,

No. DA-0432-03-0285-I-1 (M.S.P.B. September 25, 2003) (“Initial Decision”).             In a

separate but consolidated appeal, No. 05-3003, she also seeks review of the decision of

the Board affirming the Department’s denial of her within-grade salary increase. Fain v.
Dep’t of Educ., No. DA-531D-03-0286-I-1 (M.S.P.B. September 25, 2003).1 Because

the Board correctly determined that Fain was properly removed for unacceptable

performance, we affirm.

                                 I.     BACKGROUND

        In August of 2001, while employed as an Equal Opportunity Specialist,

GS-0360-12, in the OCR for the Department, Fain received a “fail” rating on her

2000-2001 performance appraisal. The Department notified her of her unacceptable

performance and gave her a 120-day period to improve to a “pass” level.           It later

extended that period by an additional six weeks. During that time, Fain met with her

supervisor on thirteen occasions regarding her performance, more than once every two

weeks.

        In July of 2002, Fain received another “fail” rating on her 2001-2002 performance

appraisal.   In response, in August of 2002, Fain contacted the Equal Employment

Opportunity (“EEO”) office and initiated an action against her supervisor, claiming that

her supervisor discriminated against her and gave her “fail” ratings for engaging in EEO

activity.

        On September 6, 2002, she received a twenty-five page notice of proposed

removal for unacceptable performance. The notice was initiated by her supervisor and

stated that her removal was proposed “because of [her] continued failure to

demonstrate performance at the ‘Pass’ level in two critical elements of [her]


        1
              Despite petitioning for review of the Department’s denial of her
within-grade salary increase, Fain does not raise any arguments concerning that denial
before this court. In fact, her briefs do not even mention that petition for review. We
consequently consider Fain’s challenge of the denial of her within-grade salary increase
to be waived. Accordingly, we address only Fain’s removal challenge in this decision.


05-3002, -3003                              2
performance plan.” Thereafter, on September 13, 2002, an EEO counselor notified

Fain’s supervisor about Fain’s EEO action.

       On September 20, 2002, Fain submitted a written response to the removal notice

to the regional director of the OCR, the deciding official. She acknowledged her two,

consecutive “fail” ratings, but nevertheless pointed out that she received a team

performance award in 2001 and thus asserted that her work was acceptable.

       On February 20, 2003, she received a notice of final decision from the regional

director, removing her from her position as an Equal Opportunity Specialist.

At the time of her removal, Fain had been employed by the federal government for thirty

years, and she was 48 years old.

       On March 7, 2003, Fain appealed her removal to the Board. On September 25,

2003, following a hearing, the administrative judge (“AJ”) assigned to her case upheld

her removal. The AJ first considered whether the Department adequately notified Fain

of her unacceptable performance and provided her with a sufficient opportunity to

improve, ultimately finding that it did both. In making this finding, she observed that the

Department issued a lengthy document, prepared by Fain’s supervisor, detailing her

performance deficiencies and offering numerous examples of precisely how her

performance fell below the “passing” level. Initial Decision, slip op. at 5. The AJ also

observed that Fain’s supervisor gave her a notice of opportunity to improve with specific

direction as to what she needed to do to attain a “pass” rating. Id., slip op. at 6. She

likewise observed that the record contained evidence of numerous meetings between

Fain and her supervisor regarding her progress. Id., slip op. at 8. Lastly, she noted that

various persons employed by the Department testified at the hearing about Fain’s poor




05-3002, -3003                               3
performance. Id., slip op. at 9-10. On the basis of that evidence, the AJ found that the

Department met its burden of proving by substantial evidence that a “reasonable person

could believe, on the basis of the evidence presented, that [Fain’s] performance on her

two critical elements was not at the passing level” and that the Department provided her

an opportunity to improve, which she did not avail. Id., slip op. at 11.

       The AJ then considered Fain’s reprisal and discrimination defenses. As to the

former, the AJ found that Fain did not meet her burden of showing by preponderant

evidence that her removal was made in retaliation for her EEO action.          Id.   She

specifically noted that Fain’s supervisor issued the notice of proposed removal on

September 6, 2002, seven days before she even became aware of Fain’s EEO action.

Id. The AJ also noted that the regional director of the OCR testified that Fain’s EEO

complaint was not a factor in his decision to concur with the supervisor’s

recommendation to remove Fain. Id., slip op. at 12. With regard to the latter, the AJ

found that Fain did not show that any similarly-situated individual was treated

disparately or that her supervisor or regional director made the decision to remove her

solely because of her age.      Id., slip op. at 14.   Accordingly, the AJ upheld Fain’s

removal for unacceptable performance. Id., slip op. at 15.

       Fain timely filed a petition for review of the AJ’s initial decision. On August 4,

2004, the full Board denied her petition. Fain v. Dep’t of Educ., No. DA-0432-03-0285-I-

1 (M.S.P.B. Aug. 4, 2004).        It concluded that she failed to present any new,

previously-unavailable evidence and that the AJ did not make an error in law or

regulation which affected the outcome of her appeal. Accordingly, the decision of the




05-3002, -3003                               4
AJ became the final decision of the full Board. See Loui v. Merit Sys. Prot. Bd., 25 F.3d

1011, 1013 (Fed. Cir. 1994); 5 C.F.R. § 1201.113(b) (2004).

      Fain timely appealed to this court. We have jurisdiction over a final decision of

the Board pursuant to 28 U.S.C. § 1295(a)(9).

                                  II.    DISCUSSION

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

Pursuant to 5 U.S.C. § 7703(c), we must affirm the Board’s decision unless we find it to

be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law; (2) obtained without procedures required by law, rule, or regulation having been

followed; or (3) unsupported by substantial evidence. Abell v. Dep’t of the Navy, 343

F.3d 1378, 1382-83 (Fed. Cir. 2003). “The petitioner bears the burden of establishing

error in the Board’s decision.” Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467

(Fed. Cir. 1998).

      Fain raises several arguments on appeal. First, she asserts that the Department

failed to follow 5 U.S.C. § 4303(c) in removing her because it delayed more than five

months in issuing a removal decision after issuing the notice of proposed removal. The

Department’s error, Fain argues, is per se harmful because there is no exception for

failing to follow the time limits set forth in § 4303(c). She also claims the Department’s

error was generally harmful because her “rights were substantially prejudiced when the

Department of Education maintained a threat of performance based action . . . for an

extended period of time.” Second, she contends that she was not aware of the areas in

which her performance was deficient because the notices she received from the

Department only mentioned one of three possible performance standards and because




05-3002, -3003                              5
her supervisor did not identify specific deficiencies in two of the several performance

progress meetings she had with her during her opportunity to improve period. Third,

Fain claims that she was removed in retaliation for the grievance she filed in October of

2001 and the EEO action that she initiated in August of 2002. Finally, she argues that

she was removed because of her age and that similarly-situated, younger employees

were treated differently. We consider each of Fain’s arguments in turn.

                                           A.

       At the outset, we observe that Fain raised her “delay” argument in her prehearing

submission, contrary to the Government’s contention. In particular, she listed as one of

the issues to be presented at the hearing “whether Agency waived its right to remove

Appellent because of Agency’s delay in issuing its final decision.” We thus conclude

that Fain’s “delay” argument was not waived and is properly before this court, even

though the Board did not discuss that argument in its decision.

       With respect to the merits of her position, § 4303(c) states: “The decision to

retain, reduce in grade, or remove an employee shall be made within 30 days after the

date of expiration of the notice period.” 5 U.S.C. § 4303(c) (2000). Fain argues, and

the government concedes, that the Department did not make the decision to remove her

until several months after the expiration date of the notice period. Fain is thus correct

that the Department did not comply with § 4303(c). Nevertheless, contrary to Fain’s

contention, we conclude that the Department’s failure was not harmful to Fain in any

legally-sufficient way.

       The facts here are similar to those in Diaz v. Department of the Air Force, 63

F.3d 1107 (Fed. Cir. 1995). There, the petitioner argued that his removal was invalid




05-3002, -3003                             6
simply because the Air Force decided to remove him more than three months after the

notice period expired. This court rejected his argument, stating “[a]n agency’s violation

of a statutory procedural requirement does not necessarily invalidate the agency action,

especially where Congress has not expressed any consequences for such a procedural

violation.” Diaz, 63 F.3d at 1109. It likewise held that an agency decision premised on

an error in statutory procedure need be reversed only if harmful error is shown. Id.

      Fain makes virtually the same argument as the petitioner in Diaz. Like the Diaz

petitioner, Fain does not argue or submit any evidence whatsoever tending to show that

the Department’s delay either affected the outcome of the Department’s decision or

otherwise harmed her. Additionally, the regional director stated in the notice of final

decision that he only considered her performance prior to the notice of proposed

removal in deciding whether to remove her. Fain’s conduct during the period of delay

thus had no adverse effect on her. Accordingly, we conclude that Fain has not shown

per se harmful error under Diaz.

      With respect to Fain’s argument that she was generally harmed by the delay, she

simply asserts that she experienced the “threat of performance based action for an

extended period of time.” She does not substantiate her claim of psychological harm

with any evidence, and the mere possibility that the deciding official would accept the

recommendation to remove her does not constitute actual harm. Moreover, as far as

we can ascertain, the delay, if anything, worked at least partially to her benefit. Had she

improved her performance during the delay period, it stands to reason that the regional

director might not have sustained the recommendation to remove her. The Department,




05-3002, -3003                              7
after all, certainly appears to have made every possible effort to help Fain maintain her

employment. We thus conclude that Fain’s general harm argument is without merit.

                                           B.

      Fain’s argument regarding her awareness of the specifics of her unacceptable

performance is entirely unpersuasive in the face of the voluminous record documenting

the Department’s repeated attempts to notify Fain in detail about her performance

deficiencies and its repeated efforts to help her improve. First, as acknowledged by the

AJ, the Department notified Fain of her unacceptable performance in an eight page

letter after she “failed” her 2000-2001 performance appraisal. That letter included four

pages of specific strategies for Fain to use to reach a “passing” level. The Department

also gave her a 120-day period of time to implement those strategies, which it later

voluntarily extended by six-weeks to ensure that she had sufficient opportunity to

demonstrate acceptable performance in particular areas evaluated on her performance

appraisal.   Second, the Department arranged for Fain to have regular performance

progress meetings with her supervisor during the entire 162-day improvement period,

which she did on thirteen separate occasions, more than once every two weeks.

Following each of those meetings, Fain’s supervisor prepared a memo describing her

discussion with Fain about deficient performance areas, specific assignments, and

suggestions for improvement. She provided these memos to Fain for Fain’s ongoing

reference. The AJ took particular note of these meetings in her decision. Third, as the

AJ explained, following both Fain’s extensive opportunity to improve period during which

she showed no change in her performance and her second “failed” performance

appraisal for 2001-2002, the Department carefully detailed the deficiencies in her




05-3002, -3003                             8
performance in a twenty-five page notice of proposed removal and provided numerous,

very specific instances where her performance was unacceptable. Lastly, when given

the opportunity to respond to the notice of proposed removal, Fain asserted that her

performance was acceptable based merely on the fact that she received a team award

in 2001.   The AJ observed, however, that the award was based upon the team’s

performance as a whole, not on Fain’s individual performance. Moreover, Fain did not

cite to even one project where she demonstrated “passing” level work or received

positive feedback. Hence, given the lengthy period of time that the Department gave

Fain to improve coupled with its very specific recommendations for improvement, we

conclude that the Board’s decision sustaining Fain’s removal for unacceptable

performance was supported by substantial evidence and was not arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.

                                           C.

      Based primarily upon the chronology of events in this case, it is clear that the

Department did not remove Fain in retaliation for her EEO activity. As the AJ noted,

Fain’s supervisor proposed her removal before even knowing that Fain had contacted

an EEO counselor and initiated an EEO action. Additionally, in the notice of proposed

removal, her supervisor provided very specific reasons to explain her recommendation.

Those reasons related exclusively to Fain’s poor performance of her job responsibilities

over the past two years. Furthermore, the deciding official testified that Fain’s EEO

actions played no part in his decision to accept her supervisor’s recommendation. The

AJ accepted this testimony, and Fain has not cited any testimony or other evidence to




05-3002, -3003                             9
the contrary. Accordingly, we conclude that the findings against Fain were supported by

substantial evidence and that the Board properly rejected Fain’s reprisal defense.

                                            D.

        Although Fain argues in her brief that she was removed because of her age, she

submitted a “Statement Concerning Discrimination” pursuant to Federal Circuit Rule

15(c) upon filing her petition for review here, stating that she waived her age

discrimination claim. Specifically, on that pre-printed form, she checked the box which

read:   “Any claim of discrimination by reason of race, sex, age, national origin, or

handicapped condition raised before the employing agency or the Merit Systems

Protection Board or arbitrator has been abandoned or will not be raised or continued in

this or any other court.” Hence, given the express language of waiver selected by Fain,

we conclude that her age discrimination claim is not properly before this court.

Moreover, this court lacks jurisdiction to decide discrimination claims. See Williams v.

Dep’t of the Army, 715 F.2d 1485 (Fed. Cir. 1983) (en banc) (holding that this court

lacks jurisdiction in “mixed” cases involving discrimination and non-discrimination

challenges pursuant to 5 U.S.C. § 7703 (b)(1)).

                                  III.   CONCLUSION

        For the foregoing reasons, we affirm the final decision of the Board because it is

supported by substantial evidence and is in accordance with the law.




05-3002, -3003                              10
