                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     OBAID BEG,                                      DOCKET NUMBER
                         Appellant,                  DC-0432-13-3191-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: July 5, 2016
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Obaid Beg, Ellicott City, Maryland, pro se.

           Rebecca Wulffen, Washington, D.C., 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
     affirmed the agency’s removal action. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or the 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).

                                      BACKGROUND
¶2         The appellant appealed the agency’s decision to remove him effective
     April 13, 2012, from the position of Chemist, GS-1320-13, based on unacceptable
     performance.     Initial Appeal File (IAF), Tab 1.       Prior to his removal, the
     appellant worked as a Chemist in the agency’s Office of the Director, Center for
     Biological Evaluation and Research (CBER), Food & Drug Administration
     (FDA).     The    appellant’s   duties    included   performing    DNA      sequencing,
     oligonucleotide services, DNA synthesis; gene quantitation; amino acid sequence
     analysis, amino acid analysis, RNA synthesis; providing expert advice and
     assistance pertaining to procedures and methods; and assisting the Facility for
     Biotechnology Resources Director in performing a variety of other work. The
     appellant’s first-line supervisor was    Dr. N.N.,   Director     of   Programs,   and
     Dr. C.W., Associate Director for Research, Office of the Director, who served as
     the appellant’s second-line supervisor.
¶3         On July 29, 2011, Dr. N.N. placed the appellant on a 60-day performance
     improvement plan (PIP) due to his unacceptable performance under critical
     element   (CE)    II.A   Administrative      Requirements,      CE II.B.1    Technical
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     Competence and Knowledge, and CE II.B.5 Customer Service.           IAF, Tab 13
     at 90. The PIP informed the appellant that his performance during the period of
     his Performance Management Appraisal Plan (PMAP) was unacceptable under
     these critical elements, and it provided specific examples of his unacceptable
     performance under each CE. The PIP provided the appellant 60 days to improve
     his performance. Id.
¶4        On January 11, 2012, Dr. N.N. notified the appellant that he had failed to
     improve his performance to at least minimally successful under CE II.A
     Administrative Requirements, II.B.1 Technical Competence and Knowledge, and
     II.B.5 Customer Service and proposed his removal for unacceptable performance.
     The appellant provided written responses to the proposal notice on January 25 and
     February 24, 2012. IAF, Tab 11 at 19-181. The agency removed the appellant,
     effective April 13, 2012, based on unacceptable performance. IAF, Tab 1.
¶5        On appeal, the administrative judge determined that, because the appellant
     did not challenge whether the Office of Personnel Management (OPM) had
     approved the agency’s performance system, and because there was no reason to
     believe that OPM had not approved it, she would presume that OPM had
     approved it. IAF, Tab 37, Initial Decision (ID) at 5. The administrative judge
     found that the appellant’s performance standards were “relatively detailed,” the
     CEs of his performance plan were broken into subelements by job element, the
     performance standards permitted an accurate evaluation of his job performance
     based on objective criteria, and the elements properly considered sufficient
     objective and measurable factors. ID at 7. Thus, after finding that the agency
     met its burden of proving by substantial evidence that these elements were
     reasonable, realistic, attainable, clearly stated in writing, and permitted an
     accurate evaluation of job performance based on objective criteria, the
     administrative judge found that the agency established that the appellant’s
     performance standards were valid.    ID at 7.   The administrative judge found
     further that the appellant’s performance standards were communicated to him and
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     that he was given a reasonable opportunity to improve his performance.
     ID at 8-10.    The administrative judge found that the agency established that,
     during the PIP period, the appellant’s performance failed to reach at least
     minimally successful in three CEs, i.e., II.A Administrative Requirements, II.B.1
     Technical     Competence    and     Knowledge,   and    II.B.5   Customer    Service.
     ID at 10-16. The administrative judge found, moreover, that the appellant failed
     to establish his affirmative defenses of discrimination (race, national origin, and
     sex) based on disparate treatment, ID at 16-20, and retaliation for prior equal
     employment opportunity (EEO) activity, ID at 20-21.                Accordingly, the
     administrative judge affirmed the agency’s removal action.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6        On review, the appellant has raised numerous allegations that the PIP
     process was flawed and that the administrative judge made errors in sustaining
     the charge and affirming the removal action. Petition for Review (PFR) File,
     Tab 1. We have considered the appellant’s arguments on review. However, we
     discern no reason to reweigh the evidence or substitute our assessment of the
     record evidence for that of the administrative judge. See Crosby v. U.S. Postal
     Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
     administrative judge’s findings when she considered the evidence as a whole,
     drew appropriate inferences, and made reasoned conclusions); Broughton v.
     Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶7        Here,     after   thoroughly   discussing   the   record    evidence   regarding
     Administrative Requirements, Technical Competence and Knowledge, and
     Customer Service, the three CEs in which the agency identified the appellant’s
     performance as unacceptable, the administrative judge found that the appellant
     failed to perform successfully in all three CEs. ID at 10-16. Specifically, the
     administrative judge found that, based on the detailed documentation and the
     consistent and thorough testimony of the appellant’s immediate supervisor, the
                                                                                       5

      agency proved all five specifications by substantial evidence, and, thus, the
      administrative judge determined that the appellant performed unsuccessfully in
      the three CEs and sustained the charge. ID at 12, 14-15.
¶8         The appellant asserts that the administrative judge erred in finding that he
      did not challenge whether OPM had approved the agency’s performance system
      or whether the agency’s plan was correct and honestly prepared.                 In
      performance-based actions taken under 5 U.S.C. § 4303, the agency bears the
      burden of showing by substantial evidence that it effected the action under an
      OPM‑approved performance appraisal system.         Griffin v. Department of the
      Army, 23 M.S.P.R. 657, 663 (1984). If an employee alleges that there is reason to
      believe that the agency’s performance appraisal system lacks OPM’s approval,
      then the Board may require the agency to submit evidence of such approval.
      Daigle v. Department of Veterans Affairs, 84 M.S.P.R. 625, ¶ 12 (1999).
¶9         Here, we have found no evidence in the record indicating that the appellant
      ever challenged whether OPM had approved the agency’s performance system.
      While the appellant may disagree with the PIP and the performance ratings he
      received, such disagreement is not a specific challenge to whether OPM had
      approved the agency’s performance system.           Sanders v. Social Security
      Administration, 114 M.S.P.R. 487, ¶ 11 n.2 (2010) (explaining that the agency
      has the burden of proving that OPM has approved its performance appraisal
      system if the appellant specifically raises such a challenge).     Thus, absent a
      specific challenge, we find that the administrative judge properly presumed that
      OPM approved the agency’s performance appraisal system. ID at 5.
¶10        The appellant appears to argue that the emails between the proposing
      official (Dr. N.N.) and the deciding official (Dr. C.W.) were improper and
      indicate that the agency had a “preemptive plan in place” to remove him.
      PFR File, Tab 1 at 1, 14-16. Specifically, the appellant asserts that emails from
      the proposing official to the deciding official concerning the PIP reflect that the
                                                                                       6

      agency already had decided to remove him prior to his completion of the PIP. Id.
      We have reviewed these emails, and we disagree that they evince a “preemptive
      plan” to remove the appellant. In any event, there is no statutory or regulatory
      prohibition against ex parte communications between the proposing and deciding
      officials or any other officials or persons during the implementation of the PIP
      itself. Fontes v. Department of Transportation, 51 M.S.P.R. 655, 668 (1991). It
      is true that the ultimate decision in a performance-based action must be made by
      the deciding official, and not by some other individual.          See Andersen v.
      Department of State, 27 M.S.P.R. 344, 350-51 (1985) (finding that, in a
      performance-based action, it is the deciding official’s independent judgement on
      the merits that is required by statute, regulation, and judicial precedent), aff’d,
      790 F.2d 91 (Fed. Cir. 1986) (Table). The administrative judge determined that
      the deciding official (Dr. C.W.) credibly testified that the appellant’s PIP was
      “very clear and detailed” and that feedback to the appellant from the proposing
      official was “very clear and specific.”     IAF, Tab 36, Hearing Compact Disc
      (HCD); ID at 9. She credibly testified further that the PIP provided the appellant
      a reasonable opportunity to improve and that it was her independent decision to
      remove the appellant when he failed the PIP. Id. We agree with these findings.
      Thus, we find no merit to the appellant’s assertion that there was a preemptive
      plan in place to remove him, and he has shown no error by the agency in
      this regard.
¶11         The appellant also argues that the administrative judge’s decision was based
      on the agency’s evidence and documents, which he asserts contained erroneous
      information.   PFR File, Tab 1 at 5.      He asserts that, because his responses
      demonstrated the “untruthfulness” in the agency’s evidence, the administrative
      judge erred by not referencing his hearing testimony or his responses to the
      removal. Id. The administrative judge’s failure to mention all of the evidence of
      record, however, does not mean that she did not consider it in reaching her
      decision. Marques v. Department of Health & Human Services, 22 M.S.P.R. 129,
                                                                                       7

      132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).        Here, while the
      administrative judge did not specifically refer to the appellant’s testimony, it is
      clear from the initial decision that the administrative judge reviewed the entire
      record and considered the appellant’s testimony and responses to the removal
      action. Thus, we have found no merit to the appellant’s assertion.
¶12         In addition, the appellant argues that he was not given a reasonable
      opportunity to respond to the notice of proposed removal because he was not
      given sufficient time to access relevant materials. PFR File, Tab 1 at 4, 6-11.
      The appellant asserts that he requested the opportunity to provide both a written
      and an oral reply, and he contends that he was denied the opportunity to provide
      an oral response. Id.
¶13         We have reviewed the voluminous record and find that, while the appellant
      asserted below that he requested the opportunity to make an oral response and
      that the agency denied his request, there is no evidence in the record to support
      either that he attempted to schedule an oral response or that the agency denied
      such a request. IAF, Tabs 32 at 13, 34; PFR File, Tab 1 at 7-10. Further, the
      record reflects that the appellant provided a lengthy written response.       IAF,
      Tab 11 at 85-181. In addition, because the appellant’s written response made the
      agency aware that he had not been provided access to his emails after being
      placed on administrative leave, the agency provided him 4 hours to access those
      documents and the opportunity to submit a supplement to his written response,
      which he did. Id. at 19-85.
¶14         Similarly, the appellant argues that the time allotted by the agency for him
      to access his work emails to prepare his response to the removal notice was
      inadequate. PFR File, Tab 1 at 6. He asserts that he was placed on administrative
      leave on January 11, 2012, and was asked to leave the workplace within an hour.
      Id.   He contends that he requested 3-4 days to access relevant data on his
      computer but that he was provided only a 4-hour window period to access his
      emails on an agency computer.      Id.   While the appellant argues that he was
                                                                                        8

      harmed because he only had 4 hours to access his emails, he has failed to provide
      any argument to show what specific emails he allegedly was prevented from
      obtaining during the time allotted or show that his inability to access such emails
      prevented him from adequately defending himself against the agency’s charge of
      poor performance.     Rather, he generally asserts that he was denied a fair
      opportunity to respond because the allotted 4 hours was inadequate for him to
      prepare a response to the notice of proposed removal. Id.
¶15        Moreover, the appellant has made no showing of how an oral response or
      additional time to access his work emails would have caused the agency to reach
      a conclusion different from the one it would have reached in the absence or cure
      of the error. Harmful error under 5 U.S.C. § 7701(c)(2)(A) cannot be presumed;
      an agency error is harmful only where the record shows that the procedural 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. Stephen v. Department
      of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991). Reversal of an action is
      warranted only where procedural error, whether regulatory or statutory, likely had
      a harmful effect upon the outcome of the case before the agency. Baracco v.
      Department of Transportation, 15 M.S.P.R. 112, 123 (1983), aff’d, 735 F.2d 488
      (Fed. Cir. 1984). Therefore, the appellant failed to establish this claim, to the
      extent that he may have been raising it as an affirmative defense of harmful error.
¶16        To the extent the appellant argues that he proved his discrimination and
      reprisal claims, we disagree. PFR File, Tab 1 at 5. After thoroughly reviewing
      the record, we agree with the administrative judge that the appellant failed to
      provide any evidence to support his claim that discrimination was a motivating
      factor in his removal.    Specifically, as correctly found by the administrative
      judge, there is no direct or circumstantial evidence, such as suspicious timing,
      ambiguous oral or written statements, behavior toward or comments directed at
      other employees in the same protected group as the appellant, and other bits and
      pieces from which an inference of discriminatory intent might be drawn, to
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      support his claims of discrimination.      In addition, as the administrative judge
      properly determined, the appellant did not provide any comparator evidence.
      Further, the administrative judge correctly found that there was no evidence in the
      record to support the appellant’s claim of a hostile work environment.
      ID at 16-20;   Savage    v.   Department     of     the   Army,   122 M.S.P.R.     612,
      ¶¶ 35-51 (2015).
¶17        Finally, we find that the appellant has failed to establish his claim of
      retaliation for EEO activity. While it is clear that he had previously filed an EEO
      claim, and it is likely the accused officials, his supervisors, were aware of his
      EEO activity, and the removal could, under the circumstances, have been
      retaliation, the administrative judge correctly found that there is no evidence,
      whatsoever, that retaliation for EEO activity was in any manner related to, nor a
      motivating factor in, his removal.      ID at 20-21; Savage, 122 M.S.P.R. 612,
      ¶¶ 35-51.   Thus, the appellant has not proven his affirmative defense by the
      preponderance of the evidence standard.           Accordingly, we conclude that the
      appellant has provided no basis upon which to disturb 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
                                                                                 10

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
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
representation by a court‑appointed lawyer and to waiver of any requirement of
                                                                       11

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




FOR THE BOARD:                       ______________________________
                                     Jennifer Everling
                                     Acting Clerk of the Board
Washington, D.C.
