                            UNITED STATES OF AMERICA
                         MERIT SYSTEMS PROTECTION BOARD


     SURESH SURI,                                    DOCKET NUMBER
                          Appellant,                 SF-0432-13-0564-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: October 17, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Ronald P. Ackerman, Esquire, Culver City, California, for the appellant.

           F. Thomas Giambattista, Esquire, Wright-Patterson Air Force Base, Ohio,
              for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     reversed its action removing the appellant from his position based on his
     performance.      Generally, we grant petitions such as this one only when:        the
     initial decision contains erroneous findings of material fact; the initial decision is

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 agency removed the appellant from his Senior Research Chemist
     position, effective May 31, 2013, based on his alleged failure to demonstrate an
     adequate level of contribution commensurate with his salary for the period from
     October 1, 2011, through September 30, 2012. 2 IAF, Tab 4, Subtabs 4a, 4b, 4d.
     Prior to his removal, the agency placed the appellant on a contribution
     improvement plan (CIP) between February 14, 2011, and August 19, 2011. IAF,
     Tab 4, Subtabs 4n, 4p, 4q. On or about September 15, 2011, the agency notified
     the appellant that he had passed the CIP. IAF, Tab 4, Subtab 4j; see IAF, Tab 4,
     Subtab 4k. However, at the end of the 2012 rating period, within 2 years of the


     2
       The administrative judge found that the agency’s removal action was equivalent to an
     action taken under 5 U.S.C. chapter 43. Initial Appeal File (IAF), Tab 18, Initial
     Decision (ID) at 1; see 75 Fed. Reg. 53,093-94 (Aug. 30, 2010). Because the appellant
     worked as part of a demonstration project, which waived provisions of chapter 43 to the
     extent necessary to allow for a contribution-based compensation system, the
     administrative judge found that the agency was only required to prove that it placed the
     appellant on a contribution improvement plan that provided him an opportunity to
     improve and that his contribution score fell below the required level within 2 years of
     the start of the CIP. ID at 4; see 75 Fed. Reg. 53,093-94, 53,098 (Aug. 30, 2010).
     Neither party disputes these findings.
                                                                                         3

     beginning of the CIP, the agency determined that his performance again fell
     below an acceptable level relative to his salary. 3 IAF, Tab 4, Subtabs 4d-4g.
¶3         The appellant filed an appeal with the Board regarding his removal and
     requested a hearing. IAF, Tab 1. He argued, inter alia, that his performance was
     not inadequate. Id. at 6. He also raised affirmative defenses of age and national
     origin discrimination, as well as reprisal for engaging in protected equal
     employment opportunity activity. Id.; IAF, Tab 12 at 11.
¶4         After holding the requested hearing, the administrative judge issued an
     initial decision reversing the agency’s removal action. See ID. He found that the
     agency did not meet its burden to prove by substantial evidence that the appellant
     failed to make an adequate contribution during the period at issue. ID at 3-9. He
     also found that the appellant failed to prove his affirmative defenses. 4 ID at 9-11.
¶5         The agency has filed a petition for review, to which the appellant filed a
     response.   Petition for Review (PFR) File, Tabs 1, 3.           It argues that the
     administrative judge erred in failing to consider documentary evidence in the
     record, which satisfied the agency’s burden to prove by substantial evidence that
     the appellant’s performance was inadequate. PFR File, Tab 1.
¶6         The administrative judge found that the agency’s witnesses made general,
     conclusory assertions concerning the appellant’s performance during the
     2012 rating period, without providing specific examples of deficiencies that
     justified his low contribution score.      ID at 5-7.    We have reviewed these




     3
       The appellant received a contribution score of 2.48 in 2012, which was considered
     unacceptable because it was more than 0.3 points below his expected score of 3.73.
     IAF, Tab 4, Subtab 4g at 1, Subtab 4l at 8. The appellant was a Level 3 Chemist, but
     contribution scores between 2.0 and 2.9 correspond to Level 2 work. IAF, Tab 4,
     Subtab 4g at 1, Subtab 4l at 11.
     4
       The appellant did not file a petition for review, so we will not disturb the
     administrative judge’s findings concerning his affirmative defenses.
                                                                                            4

     witnesses’ testimony 5 and agree with the administrative judge’s assessment. 6
¶7       On review, the agency does not appear to dispute the administrative judge’s
     characterization of its witnesses’ testimony.           Rather, it argues that the
     administrative judge erred by focusing exclusively on the testimony at hearing
     and evidence in the agency file, rather than considering the record as a whole,
     including documentary evidence the appellant submitted. PFR File, Tab 1 at 6.
¶8         Specifically, the agency argues that the administrative judge made a
     material error of fact in finding that the record evidence was insufficient to
     explain the basis for the appellant’s 2012 contribution score. Id. at 4-5. It asserts
     that its responses to the appellant’s Interrogatories 9 and 10, which were included
     in Exhibit A of the appellant’s prehearing submission, and which the
     administrative judge admitted into evidence, contained “dispositive” information
     concerning why the appellant received the contribution score he received, as
     compared to his colleagues’ contributions and their corresponding scores.             Id.
     at 5, 7.
¶9         As an initial matter, as to the agency’s conjecture that the administrative
     judge “overlooked this significant evidence” because he did not mention it in the
     initial decision, we note that an administrative judge’s failure to mention all of


     5
       We also reviewed the testimony of two agency employees whom the appellant, not the
     agency, called as witnesses. As the administrative judge noted, both of these
     employees’ testimony was of limited relevance. See ID at 8. One employee supervised
     the appellant until July 2011, the other employee did not begin supervising him until
     August 2012, and neither of these employees could comment, based on firsthand
     knowledge, on the appellant’s performance during the 2012 rating period. See Hearing
     Compact Disc (HCD).
     6
       The appellant’s supervisor provided minimal specificity, testifying that the appellant
     failed to lead or define any projects, build teams, and secure funding. See HCD
     (supervisor’s testimony). This appears inaccurate, however, because the appellant’s
     2012 performance appraisal indicates that his assistance on a team researching cyanate
     ester resins helped to secure $365,000 in funding for continued work on the project, that
     he served as the principal investigator on a project to develop triazole cure chemistry,
     and that he spoke with an individual at NASA upon learning that NASA might have
     renewed interest in advanced energetic hydrocarbons. IAF, Tab 4, Subtab 4g at 2.
                                                                                          5

      the evidence of record does not mean that he did not consider it in reaching his
      decision.       See    Marques     v.    Department      of   Health     &    Human
      Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
      (Table). We also find it curious that the agency admittedly made no reference at
      the hearing to this evidence, which it now claims is dispositive. PFR File, Tab 1
      at 4. Notably, at the conclusion of the hearing, the administrative judge stated
      that he remained concerned as to whether there was sufficient evidence regarding
      the substantive basis for the appellant’s 2012 contribution score, whether the
      score fairly reflected his contributions in 2012, and why the agency believed his
      contributions were more consistent with that of a Level 2, rather than a Level 3,
      Chemist. HCD at 4:25:33-4:28:40. He asked agency counsel whether there was
      any additional evidence regarding this issue and, more specifically, anything he
      could use to evaluate whether the appellant’s performance was consistent with
      Level 2 or Level 3. Id.     Even in response to that inquiry, the agency made no
      reference to Exhibit A or the information contained therein. Id.
¶10        In any event, we do not agree that Exhibit A can be used for comparison or
      that it is dispositive. Exhibit A contains a list of the overall contribution scores
      that seven Level 3 Chemists under the same supervisor 7 as the appellant received
      in 2011 and 2012, as well as summaries of five of these employees’ contributions
      between September 30, 2010, and September 30, 2012. IAF, Tab 12 at 16, 23-42.
      However, a significant number of the tasks enumerated in the Exhibit A
      summaries are undated, so we cannot identify which of them were considered in
      which year when assigning scores. Id. at 23-41. The tasks are also grouped into
      four categories (outside proposals, external publications, presentations of merit in
      professional societies, and research/work opportunities created), without an
      explanation of how these categories correspond to the four criteria used to

      7
        This individual was the appellant’s first-level supervisor of record, and issued his
      performance evaluations, but did not actually supervise his day-to-day activities. See
      HCD (supervisor’s testimony).
                                                                                     6

      evaluate    contributions     (problem    solving,   communication,   technology
      management, teamwork and leadership) and how each employee scored in each of
      those criteria.
¶11         The agency now argues that the appellant received a low score because he
      “only published one article and only worked on one experiment,” whereas his
      colleagues made “voluminous” contributions. PFR File, Tab 1 at 7. However,
      the appellant’s supervisor explicitly testified that, in determining contribution
      scores, the agency considered the quality and “worth” of employees’ work and its
      impact on the agency’s mission, more so than the quantity of their work. See
      HCD (supervisor’s testimony).         As an example, the supervisor noted that,
      although there were more tasks identified on the appellant’s 2012 appraisal than
      his 2011 appraisal, he received a significantly higher score in 2011, because the
      “impact” of his contributions was greater that year.       Id.; see IAF, Tab 4,
      Subtab 4g at 2, Subtab 4i at 2. Thus, the fact that the summaries in Exhibit A
      enumerate various tasks that other Level 3 Chemists performed does not allow us
      to conduct any meaningful comparison because we have no information regarding
      their relative quality or significance.
¶12         The appellant’s supervisor also testified that employee contributions are
      measured against standards set forth in the Federal Register, but the agency has
      not explained how it assessed the contributions identified in Exhibit A against
      these published standards.     See HCD (supervisor’s testimony).   Moreover, the
      deciding official testified that, after determining employee scores, agency
      managers compared employees’ contributions to confirm consistency of the
      scores assigned for various levels of contribution. See HCD (deciding official’s
      testimony). However, the agency did not submit any such comparison evidence.
¶13         The agency also asserts that the administrative judge could have compared
      evidence it submitted regarding the appellant’s performance during the CIP—in
      Tabs 4j-4r of its response file—with evidence regarding his level of performance
      during the 2012 appraisal period to assess whether his contribution score was
                                                                                      7

      reasonable.   PFR File, Tab 1 at 5.         Rather than conducting any specific
      comparison of the appellant’s performance during the CIP, as compared to
      afterwards, the agency makes a blanket citation to nine tabs of evidence, with
      only the bare assertion that this evidence “could have been used as comparison to
      the Appellant’s level of contribution during the period in question.” Id. This is
      wholly insufficient to establish a basis for review. See Weathers v. Department of
      the Navy, 121 M.S.P.R. 417, ¶ 7 (2014) (citing 5 C.F.R. § 1201.115(a)(2)); see
      also 5 C.F.R. § 1201.115(a)(2) (a petitioner alleging that an initial decision
      contains erroneous findings of material fact must explain why the challenged
      factual determination is incorrect). Regardless, as previously explained, we do
      not have the tools to conduct such a comparison on our own because the agency
      did not provide adequate information concerning how it evaluated various tasks
      when assigning contribution scores.
¶14        Based on the foregoing, we find that the agency has not established any
      basis for review. We therefore AFFIRM the initial decision.

                      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:
                                                                                    8

                           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
                                                                        9

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




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