                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHNNETTA PUNCH,                                DOCKET NUMBER
                  Appellant,                         DA-0432-13-4323-I-2

                  v.

     NATIONAL AERONAUTICS AND                        DATE: February 9, 2016
       SPACE ADMINISTRATION,
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Bobby Devadoss, Esquire, and Stephanie Bernstein, Esquire, Dallas, Texas,
             for the appellant.

           Randall T. Suratt, Esquire, Houston, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained her removal. 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 interpretation of statute or regulation or the

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                         2

     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse of discretion,
     and the resulting error affected the outcome of the case; or new and material
     evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. See title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).             After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        The appellant served as a GS-12 Program Analyst in the agency’s Office of
     the Director, Lyndon Johnson Space Center, in Houston, Texas.               Punch v.
     National Aeronautics & Space Administration, MSPB Docket No. DA-0432-13-
     4323-I-1, Initial Appeal File (I-1 IAF), Tab 4, Subtab 4o. On March 4, 2013, the
     agency issued her a Notice of Unacceptable Performance advising her that she
     was failing to meet the performance requirements for two critical elements of her
     position: Provide a risk-based cost estimate and related documentation for the
     Ares 1-X Project using the SEER 2 suite of estimating tools (critical element 1),
     and using the PRICE Systems 3 suite of estimating tools (critical element 2). Id.,
     Subtab 4l. The Notice of Unacceptable Performance indicated that the appellant’s
     performance had not met expectations since 2011 and that, despite being offered
     considerable assistance, her performance deficiencies continued. She was placed
     on a 60-day Performance Improvement Plan (PIP) to provide her an opportunity

     2
       System Estimation and Evaluation of Resources (SEER) is a commercial parametric
     cost model used by the agency for parametric hardware estimating, which in turn is a
     tool that assists in the planning and management of projects.
     3
       PRICE Systems is a tool that, inter alia, provides the agency with a cost-estimating
     framework designed to reduce the time and expense required to satisfy credible,
     data-driven parametric estimating needs.
                                                                                           3

     to improve her performance to a minimally acceptable level. For each of the two
     critical elements, she was given three specific work tasks (developing, analyzing,
     and presenting the results of her cost estimate using each of the two suites) and
     deadlines, and she was informed that, to meet a minimally acceptable level of
     performance, she could have no more than five errors with no more than two
     instances of missed deadlines.      Id.   At the conclusion of the PIP, the agency
     determined that the appellant had made 17 significant errors related to critical
     element 1, and 19 errors related to critical element 2. Id., Subtabs 4a, 4b. On
     June 6, 2013, the agency issued the appellant a Performance Summary Rating
     Level of Unacceptable for the period from May 1, 2012, to April 30, 2013, id.,
     Subtab 4k, and a Notice of Proposed Removal based on her continued
     unacceptable performance in critical elements 1 and 2, id., Subtab 4j. Following
     the appellant’s oral and written replies to the notice, id., Subtabs 4f, 4g, on
     August 5, 2013, the agency issued a decision letter concluding that she had failed
     to demonstrate acceptable performance in either critical element 1 or 2,
     warranting her removal, effective August 7, 2013, id., Subtabs 4c, 4d.
¶3         On appeal, the appellant argued that the agency did not communicate her
     critical elements and performance standards to her, did not warn her of her
     inadequacies, did not provide her a reasonable opportunity to improve, and, in
     taking the removal action, retaliated against her for protected activity. I-1 IAF,
     Tab 1 at 6. She requested a hearing. Id. at 2. The appellant subsequently added
     claims that the agency denied her due process and committed harmful procedural
     error, and she clarified her position that the agency’s action was in retaliation for
     her protected equal employment opportunity (EEO) activity. 4 Punch v. National
     Aeronautics &        Space        Administration,        MSPB         Docket        No.
     DA-0432-13-4323-I-2, Initial Appeal File (I-2 IAF), Tab 13. When she withdrew
     her hearing request, I-2 IAF, Tab 27, the administrative judge issued a close of
     4
       The appellant raised these claims after the administrative judge dismissed the initial
     appeal without prejudice to refiling. I-1 IAF, Tab 18, Initial Decision at 1.
                                                                                             4

     the record notice, I-2 IAF, Tab 29, to which both parties made final submissions, 5
     I-2 IAF, Tabs 30-36.
¶4         Thereafter, the administrative judge issued an initial decision affirming the
     agency’s action.    I-2 IAF, Tab 44, Initial Decision (I-2 ID) at 1, 14.         He first
     found that, in the absence of a claim by the appellant that the agency’s
     performance appraisal system was not approved by the Office of Personnel
     Management (OPM), the agency was not required to submit evidence of such, and
     the administrative judge presumed that the agency was in compliance with the
     requirement. 6 I-2 ID at 3-4. The administrative judge next found that, on their
     face, the agency performance standards at issue impermissibly required
     extrapolation more than one level below the written standard, but that the agency
     cured the defect with its subsequent written communications to the appellant so
     that it did, in fact, show that it notified her of the minimum level of performance
     necessary to achieve acceptable performance, that is, the Needs Improvement
     level. I-2 ID at 4-7. The administrative judge found that the agency provided the
     appellant with a reasonable opportunity to improve her performance, I-2 ID at 7-
     9, but that she failed to meet at least one critical element of her position during
     the PIP, I-2 ID at 9-10. In addressing the appellant’s affirmative defenses, the
     administrative judge found that she failed to show that the removal action was
     taken in retaliation for her protected EEO activity, I-2 ID at 10-12, or that the
     agency denied her minimum due process or committed harmful procedural error,
     I-2 ID at 13.



     5
       The appellant also filed a submission after the close of the record, I-2 IAF, Tab 37, to
     which the agency replied. I-2 IAF, Tab 40. Finding the appellant’s submission
     untimely filed without good cause shown, the administrative judge declined to consider
     it or the agency’s reply. I-2 IAF, Tab 44, Initial Decision (I-2 ID) at 14 n.3.
     6
       In fact, the agency was in compliance because it submitted evidence that, on
     January 31, 2005, OPM approved its performance appraisal system. I-1 IAF, Tab 4,
     Subtab 4p.
                                                                                             5

¶5           The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3.
¶6           On review, the appellant argues that the administrative judge erred in
     finding that the agency proved that she had adequate time and resources to
     satisfactorily complete the PIP. 7        PFR File, Tab 1 at 18-21.        In determining
     whether an agency has afforded an employee a reasonable opportunity to
     demonstrate acceptable performance, relevant factors include the nature of the
     duties and responsibilities of the employee’s position, the performance
     deficiencies involved, and the amount of time which is sufficient to enable the
     employee to demonstrate acceptable performance.                   Lee v. Environmental
     Protection Agency, 115 M.S.P.R. 533, ¶ 32 (2010).
¶7           The appellant first argues that the administrative judge “blatantly misstated
     the law” by holding the appellant responsible for proving that her computer issues
     impacted her ability to perform under the PIP, whereas it is the agency’s burden
     to prove that she had a reasonable opportunity to improve her performance. PFR
     File, Tab 1 at 20. On the contrary, the administrative judge set out the agency’s
     burden and, after weighing the evidence, found that the agency presented
     substantial evidence that it provided the appellant a reasonable opportunity to
     demonstrate performance at the minimally acceptable or Needs Improvements
     level. I-2 ID at 3, 7-9.
¶8           The appellant contends that she had computer problems of which the agency
     was aware that impacted her ability to meet the requirements of the PIP, and that
     she lost 6 days of the 60-day PIP due to computer issues. 8               PFR File, Tab 1
     at 18-21. The administrative judge acknowledged that the appellant’s supervisor
     and her team lead knew that she had computer problems, but considered their
     testimony that some of the errors were of the appellant’s own doing and that, in
     7
       For ease of analysis, we have addressed the appellant’s claims in a different order than
     that in which they were raised.
     8
         The appellant does not assert that she asked for an extension of the PIP.
                                                                                        6

      any event, she still had adequate time and resources to complete the assigned
      tasks. I-2 ID at 9, see, e.g., I-2 IAF, Tab 30 at 173-78 of 775 (deposition of the
      appellant’s team lead); I-2 IAF, Tab 31 at 66-68 of 593 (deposition of the
      deciding official); and I-2 IAF, Tab 31 at 213-18 (deposition of the appellant’s
      supervisor).
¶9         The appellant also argues on review that she was denied access to technical
      experts during the PIP, which adversely impacted her ability to complete the
      assigned tasks. PFR File, Tab 1 at 13-15. The administrative judge considered
      the appellant’s claim and the evidence she submitted in support, such as the
      affidavit of a licensed trainer to the effect that such access would have been
      critical to the appellant’s success, I-2 IAF, Tab 33, but he also considered
      contrary evidence provided by the agency’s witnesses to the effect that the
      appellant had access to other individuals who had worked on the project
      previously, I-2 ID at 8-9; see, e.g., I-2 IAF, Tab 30 at 78-80 of 775 (deposition of
      the appellant’s team lead); I-2 IAF, Tab 31 at 60-62 of 593 (deposition of the
      deciding official); and I-2 IAF, Tab 31 at 68-70 (deposition of the
      appellant’s supervisor).
¶10        As the administrative judge correctly found, the agency’s burden of proof in
      an action taken under 5 U.S.C. chapter 43 is substantial evidence, 5 U.S.C.
      § 7701(c)(1)(A), which 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.
      § 1201.4(p); I-2 ID at 3. The agency need not present more persuasive evidence
      than that presented by the appellant in order to meet its burden.        Shuman v.
      Department of the Treasury, 23 M.S.P.R. 620, 624 (1984). Based on our review
      of the record evidence, we find that the appellant has not shown error in the
      administrative judge’s conclusion that the agency proved by substantial evidence
                                                                                             7

      that the agency afforded her a reasonable opportunity to improve her performance
      during the PIP. 9
¶11         The appellant next alleges that the administrative judge erred in finding that
      the agency proved that her actual performance was unacceptable during the PIP.
      PFR File, Tab 1 at 10-18. Part of the agency’s burden of proof is to show that the
      appellant’s performance remained unacceptable in one or more of the critical
      elements for which she was provided an opportunity to demonstrate acceptable
      performance. 5 U.S.C. § 4302(b), 7701(c)(1)(A); Lee, 115 M.S.P.R. 533, ¶ 5.
¶12         The appellant asserts that the administrative judge gave too much emphasis
      to the depositions and affidavits of agency officials in finding that the agency met
      its burden to prove that her performance was unacceptable, PFR File, Tab 1
      at 10-11, and she argues that the officials were not wholly consistent on certain
      points and that their testimony was contradicted by the appellant’s own affidavit,
      id. at 16-17.
¶13         The agency witnesses who worked with the appellant during the PIP
      testified at great length on the errors the appellant committed. See, e.g., I-2 IAF,
      Tab 31 at 88-154 (deposition of the appellant’s supervisor); I-2 IAF, Tab 30
      at 191-294 of 775 (deposition of the appellant’s team lead).            Given that the
      agency bears the burden of proof in this matter by substantial evidence, we find
      that the appellant has not shown that the administrative judge’s reliance on the
      agency officials’ affidavits and depositions was improper.            Even if, as the
      appellant asserts, the individuals provided inconsistent testimony on certain




      9
        The appellant argues that she requested to work at home but that the agency, without
      providing an explanation, did not allow her to do so. PFR File, Tab 1 at 19-20. The
      administrative judge found that, as with certain of the appellant’s other objections, she
      did not show that working at home would have affected her ability to complete the tasks
      in the time allowed. I-2 ID at 9. Beyond her mere disagreement, the appellant has not,
      on review, shown error in the administrative judge’s finding regarding this matter.
      Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997).
                                                                                        8

points, 10 she has not shown that any such inconsistencies or any other factors
were sufficient to render them incredible. Further, to the extent that the agency
witnesses’ testimony regarding the errors the appellant committed during the PIP
is contradicted by her own testimony, as we have pointed out, substantial
evidence is only that degree of evidence that a reasonable person, considering the
record as a whole, might accept as adequate to support a conclusion, even though
other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). Finally, while
the appellant argues that the administrative judge did not take into account her
own affidavit regarding the cited errors, we find that the administrative judge did,
in fact, consider that the appellant disputed the errors attributed to her. I-2 ID
at 10.   In any event, an administrative judge’s failure to mention all of the
evidence of record does not mean that he did not consider it in reaching his
decision. 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). In sum, we find that
the appellant has not shown that the administrative judge erred in finding that the
agency proved by substantial evidence that her performance was unacceptable in
at least one critical element. 11


10
   For example, the appellant asserts that her supervisor testified during his deposition
that, based on the appellant’s assignments during the PIP, she did not need technical
experts but that he also testified that such projects sometimes require extensive
interaction with external parties. I-2 ID at 14.
11
   The appellant also challenges certain agency officials’ qualifications to evaluate her
performance, claiming that, because the deciding official relied heavily upon the
proposing official and another subject matter expert, he did not make an independent
determination. PFR File, Tab 1 at 22-24. Although the deciding official acknowledged
not being a “practitioner in cost estimating or cost assessment,” I-2 IAF, Tab 31 at 27,
29 of 593, he carefully explained how, in reaching his determination, he relied on his
management team to provide the details, id. at 28, and reviewed the cited errors along
with the appellant’s “rebuttals,” id. at 29, and the other pertinent documents, id.
at 30-31, including emails between the appellant and her supervisor, id. at 31-33. The
appellant has pointed to no requirement in law or regulation that a deciding official in a
performance-based action under 5 U.S.C. chapter 43 must possess specific subject
matter expertise, and we are not aware of any such requirement.
                                                                                            9

¶14         Next, the appellant challenges the administrative judge’s statement that she
      failed to prove that, in removing her, the agency violated her due process rights or
      committed harmful procedural error. PFR File, Tab 1 at 7-9. First, the appellant
      contends that she requested, but was denied, documents related to proposed
      disciplinary actions issued to similarly situated employees and “supervisory and
      OPF files (including performance appraisals.)” Id. at 7. The appellant has not,
      by this claim, established a violation of her constitutional right to minimum due
      process as she does not assert, nor is there evidence to show, that she was denied
      prior notice of the action and an opportunity to respond. Cleveland Board of
      Education v. Loudermill, 470 U.S. 532, 546 (1985). Neither has the appellant
      demonstrated that the agency’s failure to provide her with these documents
      constituted harmful procedural error because she has not shown that any such
      error was likely to have caused the agency to reach a conclusion different from
      the one it would have reached in the absence or cure of the error. 12 Vena v.
      Department of Labor, 111 M.S.P.R. 165, ¶ 9 (2009).
¶15         The appellant also alleges that, during adjudication, she was denied copies
      of the work product documents she submitted during the PIP. PFR File, Tab 1
      at 9. Again, she has failed to establish any violation of her due process rights in
      this regard. Moreover, the agency challenges the appellant’s assertion and has
      submitted copies of her presentations on the three deadlines for each of the two
      critical elements at issue. I-1 IAF, Tab 10, Agency Exhibits 1-6. As such, we
      find that the appellant has not established any procedural error, much less a
      harmful one.
¶16         Finally, the appellant disputes the administrative judge’s finding that she
      failed to establish her claim that the agency’s action was in retaliation for her


      12
        The appellant did not raise an allegation of disparate penalty below, I-2 IAF, Tab 7,
      and, in any event, the Board has no authority to mitigate a penalty taken under 5 U.S.C.
      chapter 43. See, e.g., Davis v. Department of Health & Human Services, 58 M.S.P.R.
      538, 541 (1993), aff’d, 26 F.3d 139 (Fed. Cir. 1994) (Table).
                                                                                            10

      protected EEO activity, specifically, EEO complaints she filed on October 1,
      2012, and March 22, 2013, in which she named as discriminatory officials the
      individuals involved in her removal. 13 PFR File, Tab 1 at 25-29. The appellant
      asserts on review that she made a prima facie case of retaliation because she
      showed that she engaged in protected activity, the deciding official knew of such
      activity, and the agency’s action could have been retaliation. Id. at 25-27.
¶17         The administrative judge correctly found, however, that the appropriate
      analysis under the circumstances involves a determination of whether the
      appellant has proven by preponderant evidence that the protected activity was a
      motivating factor in the contested personnel action.           I-2 ID at 10; Savage v.
      Department of the Army, 122 M.S.P.R. 612, ¶ 41 (2015).              The administrative
      judge also correctly found that proof that the protected activity was a motivating
      factor may be shown by different types of evidence, including direct evidence or
      circumstantial evidence, the latter of which may consist of suspicious timing,
      ambiguous oral or written statements, behavior toward or comments directed at
      other employees in the protected group, and other bits and pieces from which an
      inference of retaliatory intent may be drawn; comparator evidence; or evidence
      that the agency’s stated reason for the action is mere pretext.           I-2 ID at 11;
      Savage, 122 M.S.P.R. 612, ¶ 42. If the appellant meets her burden, the Board
      will reverse the action only if the agency fails to show by preponderant evidence
      that the action was not based on the prohibited personnel practice; that is, that it
      still would have taken the contested action in the absence of retaliatory motive.


      13
         On review, the appellant claims that the administrative judge overlooked the fact that
      she filed a third EEO complaint on June 27, 2013. PFR File, Tab 1 at 30. We disagree.
      The administrative judge did note the appellant’s assertion that she contacted an EEO
      counselor on February 8, 2013. I-2 ID at 10. In any event, even if the appellant filed a
      third EEO complaint, as she asserts, that filing would have been after she had
      completed the PIP and several weeks after June 6, 2013, when the agency proposed her
      removal. Therefore, to the extent the administrative judge erred in not mentioning the
      third EEO complaint, any such error did not prejudice the appellant’s substantive rights.
      See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
                                                                                      11

      Id., ¶ 51. On review of the record evidence, the administrative judge found that
      the appellant failed to meet her burden. I-2 ID at 11-12.
¶18            The appellant’s main claim is that the administrative judge failed to
      acknowledge the extent to which the agency officials involved in her removal
      knew of her protected activity.     PFR File, Tab 1 at 28-29.     Specifically, the
      appellant challenges the administrative judge’s reliance on the deciding official’s
      testimony that he was aware only generally that the appellant had filed an EEO
      complaint.     I-2 IAF, Tab 3 at 23 of 593 (deposition of the deciding official);
      I-2 ID at 11.     Although such knowledge would be pertinent in determining
      whether the appellant made a prima facie showing of retaliation, we have found
      that that analysis is unnecessary under these circumstances, and that the matter
      for consideration is whether, using the types of evidence set out above, the
      appellant showed by preponderant evidence that retaliation was the motivating
      factor in the agency’s decision to remove her.
¶19            In this regard, the administrative judge considered evidence that the
      appellant’s performance problems predated her protected EEO activity. I-2 ID
      at 12.     He also considered the appellant’s claim that she received a Fully
      Successful rating and a within-grade increase for the period from May 2011 to
      April 2012.     He found that her original rating of Needs Improvement was
      upgraded to Fully Successful in settlement of a grievance she filed after it was
      discovered that she had mistakenly received an automatic notification of a
      successful rating due to a computer error. In so finding, the administrative judge
      noted that, as the agency alleged, the narrative of the appraisal, which indicated
      that the appellant’s performance needed to improve, remained unchanged. Id. On
      review, the appellant challenges the administrative judge’s findings regarding the
      effect of any computer error on her earlier rating.     PFR File, Tab 1 at 21-22.
      However, the appellant’s supervisor’s testimony at deposition, I-2 IAF, Tab 31
      at 40-42, combined with the negative remarks that remain on the appellant’s
      earlier performance rating, I-2 IAF, Tab 43, Exhibit 11 at 8, cast doubt on her
                                                                                        12

claim that her removal for unacceptable performance was motivated by retaliation
for her protected EEO activity. In sum, we find that the appellant has not shown
that the administrative judge erred in finding that she did not establish that
retaliation was a motivating factor in her removal. 14

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
       You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
       You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:




14
   With her petition for review, and notwithstanding that she is represented by counsel,
the appellant has submitted her own affidavit in which she argues that the
administrative judge failed to properly review the agency’s “alleged errors” in her case.
PFR File, Tab 1 at 36-38. Specifically, she states that the administrative judge who was
originally assigned to this case rejected as exhibits the pertinent user manuals on the
basis that the parties agreed to submit the relevant pages of the manuals, if necessary.
I-2 IAF, Tab 13 at 1. In her affidavit, the appellant argues that she referenced
“pertinent pages” from one of the manuals as proof that each of the alleged errors “were
[sic] not errors,” but that she did not upload the entire document because of its size.
PFR File, Tab 1 at 37; I-2 IAF, Tab 7 at 26 n.1. To the extent that the appellant’s
complaint is that the administrative judge who adjudicated this case did not, in his
decision, address each error cited by the agency, the fact that he failed to mention all of
the evidence of record does not mean that he did not consider it in reaching his
decision. See Marques, 22 M.S.P.R. at 132.
                                                                                   13

                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

        You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
        If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
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
                                                                           14

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




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