                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     MADELINE S. VAN WAGENEN,                        DOCKET NUMBER
                   Appellant,                        SF-0432-13-0193-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: February 11, 2015
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Alan L. Lescht, Esquire, and Susan L. Kruger, Esquire, Washington, D.C.,
             for the appellant.

           Kimberly A. Jones, Esquire, Laguna Niguel, 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 performance-based removal action.          Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     findings of material fact; the initial decision is based 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).
¶2        The appellant was removed from the position of Asylum Officer, GS-0930-
     12, U.S. Citizenship and Immigration Services, Department of Homeland
     Security, in the Los Angeles Asylum Office (hereinafter “service center”),
     effective December 17, 2012. Initial Appeal File (IAF), Tab 1 at 1, 3, Tab 6,
     Subtab 4a. The appellant had over 22 years of federal service, 18 of which were
     in the position from which she was removed.         See IAF, Tab 1 at 1, Tab 6,
     Subtab 4b at 1.
¶3        Asylum Officers adjudicate affirmative asylum claims, that is, humanitarian
     claims for permanent residence made by aliens who are in the country with or
     without legal status. Asylum seekers file claims directly with the agency. See
     IAF, Tab 28, Exhibit (Ex.) A at 9; see also Department of Homeland Security,
     The Affirmative Asylum Process, http://www.uscis.gov/humanitarian/refugees-
     asylum/asylum.    The agency’s affirmative asylum process is nonadversarial in
     that no government official argues against the application for asylum.         IAF,
     Tab 28, Ex. A at 11.     Generally, applications are granted, recommended for
     approval (pending receipt of additional information), denied, or referred to an
                                                                                     3

     immigration judge at the U.S. Department of Justice (DOJ) for an adversarial
     proceeding. Id. at 13-16.
¶4        Asylum Officers work under tight deadlines imposed by statute. Once an
     application is forwarded to an agency service center, the case must be adjudicated
     within 180 days. IAF, Tab 29, Ex. 12 at 11-12; see 8 U.S.C. § 1158(d)(5)(A)(iii).
     The 180-day processing period is shared by the agency and DOJ’s immigration
     judges.   IAF, Tab 29, Ex. 12 at 11-12.       The agency’s service center must
     adjudicate cases within 60 days so that DOJ has 120 days to complete its
     adjudicatory process.   Id.    Thus, Asylum Officers must interview applicants
     within 45 days and provide assessments to their supervisors within 4 days of
     conducting interviews. Id. at 12; IAF, Tab 6, Subtab 4d at 7.
¶5        In addition to having a brief window for processing, asylum cases can be
     factually complex. See IAF, Tab 28, Ex. A at 39-63, Tab 35; see also Hearing
     Transcript (HT) at 124-25, 134-35. Processing the cases can be time-consuming
     if Asylum Officers thoroughly research the conditions of the countries from
     which applicants seek asylum, conduct probing interviews in which they test the
     applicants’ stories, and prepare assessments referring cases to DOJ based on
     credibility issues. See IAF, Tab 28, Ex. A at 39-63; see also HT at 134-35.
¶6        The appellant argued that, starting in 2000, while she served as chief union
     steward, the performance standards for Asylum Officers were unreasonably high
     and did not allow sufficient time in which to thoroughly review applications. HT
     at 164. She raised this concern to her supervisors and managers over the years, as
     well as to Alejandro Mihorkas, the agency’s Director, at a town hall meeting in
     February 2011, and to Senator Charles Grassley in September 2011.             HT
     at 185-86; see IAF, Tab 28, Ex. T. In 2004 and 2005, the appellant complained
     that the wife of the Los Angeles service center director, G.M., was serving in his
     chain of command.           The appellant’s complaint resulted in the wife’s
     reassignment.   See IAF, Tab 28, Ex. V.       The appellant also testified for a
     coworker in an equal employment opportunity (EEO) matter involving G.M. in
                                                                                       4

     September 2010. IAF, Tab 28 at 18. She filed several formal EEO complaints
     over the years as well. Id.
¶7            On November 4, 2011, the appellant received an Employee Performance
     Plan and Appraisal Form (PPA) for fiscal year (FY) 2012. IAF, Tab 6, Subtab 4d.
     The PPA lists five critical core competencies, which include communication,
     customer service, representing the agency, teamwork and cooperation, and
     technical proficiency.     Id. at 2-3. The PPA also lists six critical performance
     goals.     Id. at 4-9.   Performance goal 4, timely case completion, required the
     appellant to submit a written decision and any additional documentation to her
     supervisor, and to complete any necessary computer updates, within 4 working
     days after conducting an applicant interview. Id. at 7. To achieve performance
     expectations, the appellant could not miss the 4-day deadline more than an
     average of 4.5 times per pay period. Id. at 8.
¶8            After the agency found that the appellant’s performance was unacceptable
     for performance goal 4 and for core competencies 2 through 4 (customer service,
     representing the agency, and teamwork and cooperation), she was placed on a
     90-day performance improvement plan (PIP) commencing March 26, 2012. IAF,
     Tab 6, Subtab 4p. To meet the PIP standard for performance goal 4, the appellant
     could fail to timely submit cases no more than an average of 4.5 times per pay
     period. Id. at 2. Regarding core competencies 2 through 4, the PIP letter stated
     that the appellant would achieve expectations:
              when [she] demonstrated by June 29, 2012 that no applicant is sent
              home without a decision when they appear for decision pick-up due
              to [her] delay in submitting the case. This standard is also met when
              no applicant is notified that their decision will not be ready for
              pickup due to [her] failure to submit the case timely. Additionally,
              this standard is met when no applicants are sent home without an
              interview and no cases are reassigned on the date of interview due to
              unreasonable delays caused by [the appellant].
     Id. at 3. The PIP letter also encouraged the appellant to request any training that
     might assist her and specifically suggested relevant training areas, including those
                                                                                       5

      that would teach her how to conduct more efficient interviews, write assessments,
      manage her time, and organize her work. Id. at 4. In addition, she was instructed
      to clear and rearrange her workspace and develop a new method to systematize
      her files.   Id.   Her supervisor, S.U., testified that the appellant’s office was
      cluttered and disorganized and that she arranged her work materials without
      considering the internal 4-day deadline for submitting cases for review.       HT
      at 34-35.
¶9          S.U. was detailed to another location from March 26, to May 11, 2012. HT
      at 38. Between March 15, 2012, and April 27, 2012, the appellant was supervised
      by another team’s supervisor, K.H. HT at 99. K.H. testified that she met with the
      appellant at least weekly to discuss her cases and she offered guidance regarding
      how to make concise credibility assessments. HT at 104-06. K.H. also removed
      150 files from the appellant’s office and instructed her to work only on
      newly-assigned cases so that she would not have a backlog while trying to
      perform successfully during the PIP.      See HT at 105; see also IAF, Tab 6,
      Subtab 4j at 3, 15-17.
¶10         Starting in March 2012, all Asylum Officers at the service center received
      training regarding “credibility flaws” from P.H., a quality assurance trainer. IAF,
      Tab 6, Subtab 4j at 4-12, 14, 18-20, 22-23.       The appellant spoke with P.H.
      following the training session regarding issues he had discussed and expressed
      her disagreement with some of the course content. Id. at 7-8, 10. P.H. responded
      that he believed the appellant’s interpretations regarding credibility were
      inconsistent with the agency’s headquarters’ credibility lesson plans, and he
      instructed her to follow headquarters’ guidance. Id. at 7-8. K.H. also advised the
      appellant that, even if she did not agree with the instructions given during
      training, the guidance had been vetted by headquarters and she needed to follow
      it. HT at 106-07.
¶11         Between March 15, and April 27, 2012, the appellant submitted ten
      assessments, only one of which was timely. IAF, Tab 6, Subtab 4n at 4-5; HT
                                                                                       6

      at 103. K.H. testified that she corrected and added content to the assessments
      without returning them to the appellant because they were already past due. HT
      at 102-03. Of the ten assessments, two were a single page in length because the
      applicant had not testified, and only four of the assessments addressed the full
      merits of the application.      HT at 103-04.     Nevertheless, K.H. noted, the
      appellant’s written products were generally too long. HT at 110.
¶12        On June 28, 2012, S.U. extended the PIP period to August 10, 2012,
      because he had been absent for much of the period. He noted, however, that the
      appellant’s performance was not yet acceptable. See IAF, Tab 6, Subtab 4o; see
      also HT at 36-38. During the remaining PIP period, he observed the appellant as
      she conducted three interviews and gave her written and oral feedback regarding
      her efficiency and the quality of her work. HT at 48-49. He advised her to adopt
      a “template approach” when she prepared written assessments, providing samples
      from a highly-productive Asylum Officer at the service center. HT at 51-52. He
      also had the appellant observe another Asylum Officer as she interviewed an
      applicant. HT at 48-50.
¶13        On August 10, 2012, S.U. informed the appellant that she had failed the
      PIP. IAF, Tab 6, Subtab 4g. He rated her performance as unacceptable for core
      competencies 2, 3, and 4, and for performance goal 4, yielding an overall rating
      of unacceptable for FY 2012.        Id., Subtab 4d.    The agency proposed the
      appellant’s removal. Id., Subtab 4f. The notice of proposed removal stated that
      she had averaged seven untimely cases per pay period and submitted timely
      assessments for only three of the 77 interviews that she conducted during the PIP
      period.   Id. at 5.    The appellant failed to submit assessments for 27 of the
      77 interviews.   Id.   Regarding her performance in the core competencies, six
      applicants whom she interviewed were sent home without a decision when they
      appeared for pick-up, and she notified 16 applicants that their decisions would not
      be ready for pick-up when originally promised. Id. at 3-4. The appellant was
                                                                                            7

      subsequently removed, and she filed this Board appeal.           Id., Subtab 4a; IAF,
      Tab 1.
¶14         On appeal, the appellant asserted that the agency discriminated against her
      based on age 2 and disability (on grounds of both disparate treatment and failure to
      accommodate). IAF, Tab 1 at 8-11. She also claimed reprisal for union and EEO
      activity   and     retaliation   for    making     protected     disclosures    as    a
      whistleblower. Id. at 3-5, 8-11; IAF, Tab 9. The administrative judge found that
      the agency proved by substantial evidence that its performance standards were
      valid, realistic, and attainable; the appellant failed to raise her performance to an
      acceptable level overall during the PIP; and the agency gave her a reasonable
      opportunity to improve. 3 IAF, Tab 41, Initial Decision (ID) at 11-18. She also
      found that the appellant did not show by preponderant evidence that the agency
      had discriminated against her based on disability.         ID at 18-22.    She found,
      moreover, that the appellant did not show that her removal was in retaliation for
      protected whistleblowing activity, ID at 22-28, and she did not establish that the


      2
        Although the appellant initially listed age discrim ination as one of her affirmative
      defense claims, see IAF, Tab 1 at 9-10, her response to the administrative judge’s order
      regarding affirmative defenses, see IAF, Tab 8, did not address age discrimination, see
      IAF, Tab 9. The administrative judge deemed the claim to have been withdrawn. See
      IAF, Tab 30 at 2-3.
      3
        An agency may remove an employee for unacceptable performance under 5 U.S.C.
      § 4303 on proving by substantial evidence that: (1) the agency had performance
      standards that were approved by the Office of Personnel Management; (2) the
      appellant’s performance fails to meet the established performance standards in one or
      more critical elements of her position; (3) the agency established performance standards
      and critical elements and communicated them to the appellant at the beginning of the
      performance appraisal period; (4) the agency warned the appellant of the inadequacies
      of her performance during the appraisal period and gave her an adequate opportunity to
      improve; and (5) after an adequate PIP, the appellant’s performance remained
      unacceptable in at least one critical element. See Muff v. Department of Commerce,
      117 M.S.P.R. 291, ¶ 5 (2012)). Substantial evidence is that 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).
                                                                                         8

      agency acted in retaliation for protected union or EEO activity, ID at 28-30. The
      administrative judge thus affirmed her removal. ID at 31.
      The appellant’s newly submitted evidence would not change the administrative
      judge’s conclusion that the performance standards were valid.
¶15          On review, the appellant has submitted several items that she argues show
      that the agency’s performance standards were invalid, including a copy of the
      agency’s newly-adopted PPA for Asylum Officers, which has been in use since
      December 18, 2013. Petition for Review (PFR) File, Tab 3 at 32-68. She argues
      that the agency changed the performance standards for Asylum Officers
      approximately 9 months after she was removed and that this change was under
      consideration while she was on the PIP. Id. at 6-8. She points out that Asylum
      Officers had complained for several years that performance goal 4 made it
      difficult to render a thorough assessment of every asylum application. Id. at 6-8,
      9-17. She cites a 2008 Government Accountability Office report stating that the
      1999     performance       standards   were   adopted   without    any      empirical
      evidence.    Id. at 5-6.    In response to that report, she explains, the agency
      commissioned a study of the asylum process, which concluded that each Asylum
      Officer’s case load should be reduced by half. Id. at 6. The appellant argues that,
      although the changes to the performance standards were still under review during
      her PIP, the agency had already committed to adopting more realistic standards
      prior to her removal. Id. at 7. The new standards do not contain performance
      goal 4 or any other timeliness standard. Under the new standards, she explains,
      National Security/Fraud Detection is the highest-rated performance goal, worth
      40 percent of the overall rating, and there is no performance goal for timeliness.
      Id. at 8; see id. at 35-36.     The focus on quality, she asserts, shows that the
      standards under which she was removed were invalid. Id. at 9-10. She contends
      that the administrative judge thus erroneously concluded that the performance
      standards under which she was removed were valid because other Asylum
      Officers had been able to meet the standards. Id. at 10-11; see ID at 16.
                                                                                             9

¶16         Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted
      for the first time with the petition for review absent a showing that it was
      unavailable before the record was closed despite the party’s due diligence.
      Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant
      included five exhibits with her petition for review. PFR File, Tab 3 at 31-68.
      Four of the five exhibits indisputably post-date the close of the record and would
      meet the Board’s definition of new evidence but only to the extent that they
      include information not already in the record. 4 See Meier v. Department of the
      Interior, 3 M.S.P.R. 247, 256 (1980) (evidence that is already a part of the record
      is not new). Exhibits 2, 3, and 5 pertain to fraudulent applications for asylum.
      The appellant put forward considerable evidence on fraud during the hearing,
      even adducing the testimony of the agency’s Fraud Detection and National
      Security Immigration Officer. See HT at 220-26.
¶17         Moreover, none of the appellant’s submissions pertaining to fraud meet the
      Board’s definition of materiality. 5 A party that seeks to submit new evidence on
      review must also show that the evidence is material, that is, it is of sufficient
      weight to warrant an outcome different from that of the initial decision.            See
      Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). The agency has
      4
        The hearing ended on June 11, 2013. See IAF, volumes 8-9. The administrative judge
      admitted a final exhibit on June 13, 2013, see IAF, Tab 35, though the appellant later
      sought to have other items added to the record, see IAF, Tabs 36-39.                 The
      administrative judge also admitted for consideration other exhibits on August 16, 2013,
      and October 17, 2013. Exhibit 1, a copy of the PPA implementing the new standards, is
      dated December 18, 2013. PFR File, Tab 3 at 32. Exhibits 2, 3, and 5, which pertain to
      fraud in the affirmative asylum process, are dated February 11, 2014. I d. at 43, 46, 66.
      Exhibit 4, which also pertains to asylum fraud, is dated July 17, 2013. I d. at 55.
      5
        On November 12, 2014, the appellant’s representative filed a “Motion for Leave to
      File Supplemental Brief and Exhib its in Support of Petition for Review.” PFR File,
      Tab 9. We DENY the appellant’s motion. The appellant’s motion appears to relate to
      the appellant’s claims below regarding fraud, specifically her claim that other Asylum
      Officers only successfully performed because they allowed applicants to commit fraud.
      As noted herein, the appellant’s prior submissions regarding fraud failed to meet the
      Board’s definition of materiality and thus we DENY the appellant’s motion to submit
      further sim ilar documentation.
                                                                                     10

      never denied that the fraud detection is an important concern, but this appeal
      pertains only to the appellant’s performance deficiencies, which the agency
      proved by substantial evidence.    Shifting the focus to more general concerns
      would not change the outcome of the appeal.
¶18        As for Exhibit 1, the PPA in use since December 18, 2013, and the issue of
      whether the adoption of new performance standards proves that the standards
      under which the appellant was evaluated were invalid, the administrative judge
      considered this issue as well.     The appellant adduced significant evidence
      regarding the timely processing of cases, and the administrative judge knew that
      the standards had been criticized and were under revision.        See, e.g., IAF,
      Tabs 28, 35, 36, 39.
¶19        Performance standards must, to the maximum extent feasible, permit the
      accurate appraisal of performance based on objective criteria.      See 5 U.S.C.
      § 4302(b)(1); see also Guillebeau v. Department of the Navy, 362 F.3d 1329,
      1335-36 (Fed. Cir. 2004).    They must be reasonable, realistic, attainable, and
      clearly stated in writing. Thomas v. Department of Defense, 95 M.S.P.R. 123,
      ¶ 12 (2003), aff’d, 117 F. App’x 722 (Fed. Cir. 2004).       The replacement of
      standards is not in itself evidence of their invalidity nor is the fact that
      similarly-situated employees testified that the standards were unrealistic.   See
      Benton v. Department of Labor, 25 M.S.P.R. 430, 434-35 (1984); see also IAF,
      Tab 6, Subtab 4b at 8-26, Tab 28, Ex. E at 6-7, Tab 35; HT at 124-28.
¶20        The appellant asserts that the emphasis on quality is somethin g to which she
      had long been attuned. PFR File, Tab 3 at 7-8. She argues that she granted less
      than one percent of the applications she approved because she was so concerned
      about fraud and that testimony from her supervisor and others shows that her
      inability to meet performance standards was attributable to the thoroughness of
      her interviews and research. Id. at 10-12; see HT at 67-68, 135; see also HT
      at 222. The performance standards under which she was evaluated, she asserts,
      may have been proper for others, but they did not permit an adequate assessment
                                                                                      11

      of her job performance. PFR File, Tab 3 at 10-11; see Williams v. Department of
      the Treasury, 35 M.S.P.R. 432, 435 n.6 (1987) (finding that the fact that all
      employees were evaluated under the same standard, and that other employees in
      the unit were able to meet that standard, does not establish that the standard
      permitted the accurate evaluation of job performance).
¶21         We reject the notion that the standards were invalid. The case upon which
      the appellant relies, Williams, is distinguishable because in that case the Board
      found that the methodology for measuring productivity was defective because it
      failed to capture significant nonquantifiable duties that were assigned to
      employees.     See Williams, 35 M.S.P.R. at 434-37; see also PFR File, Tab 3
      at 10-11.    The appellant does not argue that the agency’s methodology for
      measuring timeliness is invalid; instead, she asserts that the standard should not
      apply in her case. The appellant also fails to account for the flexibility inherent
      in the standard to accommodate the more difficult cases. Although performance
      goal 4 required Asylum Officers to submit completed cases to their supervisors
      within 4 working days after applicant interviews, they were allowed to submit
      cases after the deadline up to 4.5 times per pay period, that is, for 25 percent of
      the maximum number of interviews assigned to an officer during a pay period. 6
      IAF, Tab 6, Subtab 4d at 6-8; see HT at 132-33, 157.            Moreover, as the
      appellant’s supervisor testified, she would have had additional time to pursue
      suspected fraud while her assessments were under review after the 4-day deadline
      passed.     HT at 32-33.   The appellant essentially contends that the agency’s
      standards were invalid because they did not allow her to process cases as she
      wanted to process them. Although her concerns about fraud seem well-placed,
      she was nevertheless obligated to perform her job according to the performance
      standards in force at the time.


      6
       Asylum Officers were assigned a maximum of 18 interviews per pay period. See IAF,
      Tab 6, Subtab 4d at 6; see also HT at 132-33, 157.
                                                                                      12

¶22        The appellant additionally asserts that the agency official who testified that
      most Asylum Officers met the standard failed to substantiate whether all officers
      whose performance was deemed acceptable or better were rated based on accurate
      statistics. PFR File, Tab 3 at 10; see IAF, Tab 29 at 6; see also HT at 13-16. She
      cites the testimony of C.W., a former Asylum Officer who averred that she never
      received an unacceptable rating even though she knew she did not meet the
      timeliness standard.     See HT at 126.       Even if the agency’s ratings are
      unsubstantiated, however, the appellant’s claims are equally so, as the former
      Asylum Officer offered no concrete evidence to support her claim that she had
      failed to meet performance goal 4.
¶23        Finally, we note that the appellant was removed for unacceptable ratings on
      three additional performance standards, the core competencies related to customer
      service, representing the agency, and teamwork and cooperation.       IAF, Tab 6,
      Subtab 4f at 1.     Those standards are still in place.    Compare IAF, Tab 6,
      Subtab 4d at 2-3, with PFR File, Tab 3 at 33.       For all of these reasons, the
      appellant’s arguments related to the validity of the performance standards are thus
      unavailing.
      The appellant was given adequate opportunity to improve her performance.

¶24        The appellant argues that the administrative judge erred when she
      concluded that the agency gave her sufficient opportunity to improve her
      performance. PFR File, Tab 3 at 17-23. She asserts that she was supervised by
      three different supervisors during the PIP period, none of whom offered adequate
      guidance      or training regarding how to     improve    on timeliness without
      compromising quality. Id. at 17-20. Again, her argument essentially rests on the
      premise that she could not follow her own priorities if she followed those of the
      agency. Although she reported to three different supervisors (one only briefly)
      during the PIP, the period was extended to cover the time that her primary
      supervisor was unavailable. See IAF, Tab 6, Subtab 4o. The record also shows
                                                                                      13

      that she received formal instruction regarding credibility assessments and
      interviewing techniques, though she took issue with much of what the trainer
      said. See id., Subtab 4j at 4-12, 14, 18-20, 22-23; see also HT at 106-07.
¶25        The appellant contends that the agency failed to adjust the timeliness
      standard to account for her preparation time for interviews that applicants
      canceled during the PIP.    PFR File, Tab 3 at 20-21. Her supervisor testified,
      however, that the agency considered preparation time when evaluating her overall
      productivity, but the cancelled interviews did not affect her evaluation under
      performance goal 4 because no assessments would have been due for interviews
      that had not been conducted. HT at 75, 80-81.
¶26        The appellant also contends that the PIP requirements were so rigid that she
      did not have a reasonable chance of meeting them. PFR File, Tab 3 at 21-22. She
      argues that the PIP required her to submit timely assessments for every interview
      she conducted, whereas other similarly-situated Asylum Officers did not work
      under the same standard.    Id. at 21.   She additionally argues that the agency
      should have afforded her a reasonable period of time during which to attain the
      required level of timeliness and considered that she was using a significant
      amount of leave for medical reasons. Id. at 21-22. The appellant’s PIP, however,
      allowed 4.5 untimely submissions per pay period, and thus was no more stringent
      than the standard under which she had worked for years. Compare IAF, Tab 6,
      Subtab 4p at 2-3, with id., Subtab 4d at 2-3. As for leave granted to accommodate
      her medical condition, the agency was not obligated to excuse her from meeting
      the performance standards for her position. See Henry v. Department of Veterans
      Affairs, 100 M.S.P.R. 124, ¶ 10 (2005) (an agency is not obligated to restructure a
      position if doing so would entail the removal of the essential functions of the
      position). For all of these reasons, the appellant’s argument, that the agency did
      not give her an adequate opportunity to improve, is unavailing.
                                                                                     14

      The appellant failed to preserve her objections to the inclusion of certain
      testimony.
¶27        The appellant asserts that the administrative judge should have excluded
      agency testimony regarding the quality of her credibility assessments because
      such testimony was irrelevant to the reasons for which she was removed. PFR
      File, Tab 3 at 22-23. The appellant, however, did not object at the hearing to the
      testimony of H.G., the agency manager who supervised her after the PIP ended, or
      to the testimony of her other PIP supervisors. She cannot do so now. See Hill v.
      Department of Health & Human Services, 28 M.S.P.R. 91, 92-93 (1985), (an
      employee’s failure to object at hearing to introduction of allegedly irrelevant
      evidence precluded her from doing so on review), aff’d, 795 F.2d 1011 (Fed. Cir.
      1986) (Table).
      The appellant failed to establish her affirmative defenses by preponderant
      evidence.
¶28        The appellant’s remaining arguments pertain to her affirmative defenses, for
      which she bore the burden of proving by preponderant evidence. See 5 C.F.R.
      § 1201.56(a)(2)(iii). She argues that the administrative judge improperly found
      that the agency did not discriminate against her based on disability when she
      concluded that the medical evidence she offered in support of her request for a
      compressed work schedule did not establish her need for such an accommodation.
      PFR File, Tab 3 at 24-25; see ID at 18-22.      She also asserts that the agency
      refused to extend to her a reasonable accommodation because of her performance
      issues and not for inadequate medical documentation. PFR File, Tab 3 at 24; see
      IAF, Tab 28, Ex. Q. She argues that the agency discriminated against her because
      management knew that she would never be able to improve her performance on
      timeliness because she focused her efforts on credibility determinations.    PFR
      File, Tab 3 at 24-25.
¶29        An employee is entitled to a reasonable accommodation but not necessarily
      the specific accommodation she chooses.       See Miller v. Department of the
      Army, 121 M.S.P.R. 189, ¶ 15 (2014).         Although the agency denied the
                                                                                             15

      appellant’s request to continue working four 10-hour days per week because she
      had performance problems while working that schedule, IAF, Tab 28, Ex. Q, it
      still allowed her flexible beginning and ending times and granted her leave
      requests, see id. at 2; see also IAF, Tab 29, Exs. 8, 10.
¶30         The appellant also argues that the agency failed to meet its burden to show
      by clear and convincing evidence that it would have removed her in the absence
      of her whistleblowing activities. 7     PFR File, Tab 3 at 25-28.        In determining
      whether the agency met its evidentiary burden, the Board considers: the strength
      of the agency’s evidence in support of its personnel action; the existence and
      strength of any motive to retaliate on the part of the agency officials who were
      involved in the decision; and any evidence that the agency takes similar actions
      against employees who are not whistleblowers but who are otherwise similarly
      situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir.
      1999).   The administrative judge found that the agency presented no evidence
      regarding nonwhistleblower employees who were placed on a PIP or failed to
      achieve acceptable ratings but were not removed. However, she found that the
      agency presented adequate evidence regarding the first and second Carr factors.
      ID at 26-28.
¶31         The appellant argues that the Board should reject the administrative judge’s
      findings regarding the first Carr factor—the strength of the agency’s evidence in
      support of its personnel action—because the agency failed to meet its burden of
      proof on the merits of the removal action. PFR File, Tab 3 at 26. These issues
      are addressed above where we found that the agency’s removal action was proper.


      7
        The administrative judge found that the appellant had made protected disclosures of
      actions that she reasonably believed evidenced a violation of a law, rule, or regu lation,
      namely, the fact that G.M.’s wife was serving in his chain of command. ID at 24-25.
      She likewise found that the appellant made protected disclosures regard ing the rushed
      conditions under which Asylum Officers were required to work. ID at 24. She
      additionally found that the appellant’s protected disclosures were a contributing factor
      in her removal. ID at 25.
                                                                                               16

      She also argues that the administrative judge erred in her analysis of the second
      Carr factor, the existence and strength of any motive to retaliate on the part of the
      agency officials who were involved in the removal decision. Id. at 26-27. The
      administrative judge found that the proposing and deciding officials, D.R. and
      T.K., had motive to retaliate against the appellant because her protected
      disclosures generally implicated their conduct and decisions. 8 She also found that
      these officials did not seem to be influenced by the agency official with the
      strongest motive to retaliate, G.M. ID at 26-27. The record showed that D.R.
      declined to place the appellant on a PIP after she received an unacceptable rating
      for FY 2011 because the agency’s performance plan had undergone significant
      changes prior to that year. HT at 89. Additionally, D.R. willingly replaced G.M.,
      who was initially named deciding official, after the appellant requested that
      another manager serve in that position.          See IAF, Tab 6, Subtab 4c at 2, 4,
      Subtab 4f; see also HT at 227-28.          In any event, as the administrative judge
      noted,   the   agency’s evidence       regarding her      performance      difficulties is
      overwhelming, and any evidence that might suggest retaliation is weak by
      comparison. See ID at 28.
¶32         Finally, the appellant argues that administrative judge improperly found
      that the agency did not retaliate against her for union and EEO activities. PFR
      File, Tab 3 at 28-29.       The administrative judge concluded that the appellant
      provided no evidence substantiating her assertion that the agency treated
      employees who did not engage in protected activities more favorably than she
      was treated. ID at 30. On review, the appellant points to the testimony of C.W.,

      8
        Comments that are highly critical of agency management may reflect poorly on all
      agency managers. See Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 23
      (2010). Thus, the fact that an agency official is outside of the whistleblower’s chain of
      command, not directly involved in alleged retaliatory actions, and not personally named
      in the wh istleblower’s disclosure does not elim inate the possibility that such ind ividual
      may harbor a retaliatory motive or exert a retaliatory influence on the whistleblower’s
      treatment. See Whitmore v. Department of Labor, 680 F.3d 1353, 1371 (Fed. Cir.
      2012).
                                                                                           17

      a former Asylum Officer who did not engage in union or EEO activities. PFR
      File, Tab 3 at 28. C.W. testified that she failed to meet the timeliness standard,
      but was never rated unsatisfactory.      HT at 126.       The appellant also identified
      other Asylum Officers who did not engage in union or EEO activities and who,
      she asserted, either maintained comparable case backlogs or required medical
      accommodations, but were not placed on PIPs. PFR File, Tab 3 at 28-29; see
      IAF, Tab 28, Ex. N; see also IAF, Tab 6, Subtab 4b at 8-12.
¶33         Where, as here, the parties have presented their evidence regarding the
      retaliation issues, the ultimate question is whether the appellant has shown by
      preponderant evidence that the agency’s proffered reason for taking action against
      her was not the actual reason for the action and that the agency intentionally
      retaliated   against   her.      See    Marshall     v.    Department    of   Veterans
      Affairs, 111 M.S.P.R. 5, ¶¶ 16-17 (2008). The evidence considered at this stage
      may include: (1) the elements of the prima facie case; 9 (2) any evidence the
      appellant presents to attack the agency’s proffered explanations for its actions;
      and (3) any further evidence of retaliation that may be available to the appellant,
      such as independent evidence of discriminatory statements or attitudes on the part
      of the agency, or any contrary evidence that may be available to the agency, such
      as a strong track record in equal opportunity employment. Id., ¶ 17. The Board
      may consider circumstantial evidence in determining whether an appellant has
      met her burden; however, to establish retaliation using circumstantial evidence,
      the appellant must show that the accused official knew of the protected activity,
      and provide evidence showing a “convincing mosaic” of retaliation against
      her. Id., ¶ 18.

      9
        To establish a prima facie case of retaliation, an appellant must show that: (1) he
      engaged in a statutorily protected activity; (2) he suffered a materially adverse action
      by the agency; and (3) a causal connection existed between the two. Marshall,
      111 M.S.P.R. 5, ¶ 14. The elements for proving a prima case of retaliation for union
      activity are the same. I d., ¶ 15. Marshall addresses within the same analytical
      framework both forms of retaliation alleged here. See id., ¶¶ 16-26.
                                                                                     18

¶34         Although the appellant documented a history of union and EEO activity and
      other disagreements wherein G.M. expressed strong anti-union sentiment, she put
      forward no evidence to suggest that S.U., D.R, or T.K. showed anti-union animus.
      See IAF, Tab 9 at 8. She likewise did not provide any significant and persuasive
      evidence that employees without union or EEO activity were treated more
      favorably than she was treated, that the agency’s stated reasons for taking the
      removal action were pretextual, or that any agency official made statements that
      would call into question the agency’s stated reasons for her removal or reveal
      retaliatory   animus   against   her.   Accordingly,   her   arguments   regarding
      discrimination and retaliation are unavailing.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision. There
      are several options for further review set forth in the paragraphs below. You may
      choose only one of these options, and once you elect to pursue one of the avenues
      of review set forth below, you may be precluded from pursuing any other avenue
      of review.

      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:
                                                                                   19

                           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
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment    of   fees,   costs,   or   other   security.   42 U.S.C.   § 2000e-5(f)
and 29 U.S.C. § 794a.

Other Claims: Judicial Review
      If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
                                                                                 20

may request the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. The court
of appeals must receive your petition for review within 60 days after the date of
this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you
choose to file, be very careful to file on time.
         If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our     website,   http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective           websites,          which         can        be        accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
                                                                           21

Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




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