                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TODD I. WEATHERSBEE,                            DOCKET NUMBER
                   Appellant,                        SF-0432-15-0634-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: August 18, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Todd I. Weathersbee, Los Angeles, California, pro se.

           Richard I. Anstruther, Esquire, San Francisco, California, 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 his performance-based 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 erroneous application of the law to the facts of the case; 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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-11 Revenue Officer with the agency’s Internal
     Revenue Service (IRS) in San Diego.          His duties required him to:     collect
     delinquent tax and secure delinquent returns from taxpayers who have not
     resolved their obligations in response to prior correspondence or other contact;
     counsel taxpayers on their tax filing, deposit and payment obligations actions
     needed to bring them into full compliance; provide customer service; perform
     credit and financial analysis of taxpayer financial records as necessary; perform
     financial investigations in certain situations; plan and take appropriate
     enforcement actions to secure an assessment on past due returns; and manage
     delinquency cases and complete required case actions. Initial Appeal File (IAF),
     Tab 8 at 72-73.   By memorandum of August 7, 2014, the appellant’s first-line
     supervisor notified him that his performance had been unacceptable in four of his
     five critical elements:     (II) Customer Satisfaction-Knowledge; (III) Customer
     Satisfaction-Application;    (IV) Business    Results-Quality;   and   (V) Business
     Results-Efficiency.    The notice set out 47 specific examples of how the
     appellant’s performance failed to meet the performance standards and explained
     that he would be afforded a 90-day performance improvement period (PIP) to
     demonstrate at least minimally acceptable performance, and that, during that
     time, he would meet regularly with his supervisor to review his progress. Id.
                                                                                            3

     at 36-51.   On November 3, 2014, the appellant’s supervisor advised him that,
     based on case reviews conducted between September 1 and October 31, 2014, he
     was continuing to fail in all four critical elements.           IAF, Tab 7 at 132-33.
     On March 4, 2015, the appellant’s second-line supervisor proposed his removal
     for failure to perform at the minimum level required for retention in his position
     under critical elements II, IV, and V.         Id. at 105‑28.     After the appellant
     submitted a written reply, id. at 17-102, the Area Director issued a decision
     finding the reasons and specifications sustained, warranting the appellant’s
     removal, effective May 15, 2015, id. at 14‑16.
¶3         On appeal, the appellant challenged the agency’s action and argued that it
     was discriminatory based on race, color, and sex, and retaliatory based on an
     equal employment opportunity (EEO) complaint he had filed in January 2014.
     IAF, Tab 1 at 7, 43-47. He also raised allegations of harmful procedural error,
     claiming that he never received the letter of decision and that he was on medical
     leave from approximately November 3, 2014, to January 12, 2015. Id. at 7. He
     requested a hearing. Id. at 2.
¶4         In her initial decision based on the written record, 2 IAF, Tab 109, Initial
     Decision (ID), the administrative judge first addressed the agency’s action. She
     found that the Office of Personnel Management had approved the agency’s
     performance appraisal system and any significant changes to it, ID at 12-13; that
     the agency communicated to the appellant the critical elements and performance
     standards of his position, ID at 13-14; that the performance standards were valid
     under 5 U.S.C. § 4302(b)(1), ID at 14-15; that the agency warned the appellant of
     the inadequacies of his performance during the PIP and gave him a reasonable
     opportunity to demonstrate acceptable performance, ID at 15-17; and that the
     agency proved by substantial evidence that the appellant’s performance remained


     2
      At a later point during the processing of the appeal, the appellant requested a decision
     on the record. IAF, Tabs 16, 29.
                                                                                        4

     unacceptable in one or more critical elements for which he was provided an
     opportunity to    demonstrate    acceptable   performance,    ID    at 17-18.    The
     administrative judge concluded that the agency proved by substantial evidence
     that the appellant’s performance was unacceptable. ID at 18‑19.
¶5         In addressing the appellant’s affirmative defenses, the administrative judge
     first considered his claim of harmful procedural error based on his absence due to
     illness for 23 days, beginning on November 13, 2014. The appellant claimed that
     he was thereby denied a full 90 days in which to demonstrate improved
     performance. The administrative judge considered the appellant’s supervisor’s
     declaration that the appellant’s PIP was extended for 2 days in that the PIP, which
     was to end on November 5, 2014, was suspended when the appellant went on
     leave, and that he completed it on January 7, 2015, 2 days after he returned to
     duty. ID at 7, 17; IAF, Tab 70 at 34. The administrative judge found that the
     agency afforded the appellant a full 90-day period in which to demonstrate
     improved performance and that, even if the agency erred in not providing the
     appellant an additional 23-day extension, he did not show, or even allege, that
     such an extension would have resulted in a different result, based largely on his
     refusal to participate in the PIP, deeming it improper. ID at 17.
¶6         The administrative judge then considered the appellant’s second claim of
     harmful procedural error; that is, that the agency failed to properly serve him a
     copy of the letter of decision. Here, the administrative judge reviewed evidence,
     which she found to be consistent with the agency’s assertions, that it mailed three
     copies of the decision letter to the appellant, one by first-class mail, one by
     certified mail, and one by United Parcel Service overnight delivery, and that the
     latter two were returned as “refused.” She considered the appellant’s claim that
     he did not refuse any letters but rather that the mail processing center he had
     designated to receive his mail did so. The administrative judge found that the
     center acted as the appellant’s agent and that its action in refusing the letters was
     imputed to him, and was consistent with his having advised his supervisor, the
                                                                                              5

     day after the decision was mailed, that he had placed a “global” direction that
     mail from the IRS be refused. ID at 22; IAF, Tab 70 at 83. The administrative
     judge further found that the third letter, the one sent by first-class mail, was
     presumed to be delivered to the appellant, that any harm he suffered by failing to
     read it or to acknowledge its receipt was not due to any action or inaction of the
     agency, and that therefore he did not establish harmful error. ID at 23‑24.
¶7         The administrative judge next addressed the appellant’s claim that the
     agency’s action was discriminatory based on his race (African American), color
     (black) and sex (male). 3       She found that the appellant failed to show, by
     documents from his prior EEO complaint, that any of these prohibited

     3
        During development of the case, the agency sought to depose the appellant in
     Los Angeles, IAF, Tab 14 at 12-13, the city of his address of record. He expressed an
     unwillingness to attend on the designated date, claiming a lack of funds to travel. Id.
     at 47-53, 42. The agency offered to conduct the deposition on a different date, but the
     appellant indicated that he could not guarantee his presence on the new date, id. at 31,
     stating that he would “not attend a deposition for you,” id. at 30. The agency filed a
     motion to sanction him for his nonappearance or to compel his attendance on a future
     date. Id. at 4-11. Following a status conference, the agency filed another motion to
     depose the appellant, IAF, Tab 20, and the administrative judge ordered him to appear
     for deposition in San Diego, his former work site, explaining that his failure to do so
     may result in sanctions, IAF, Tab 21. The appellant again indicated that he was unsure
     if he would be able to attend. IAF, Tab 23. He then advised the administrative judge
     that he intended to relocate to South Carolina and offered to be deposed there. IAF,
     Tab 24. Noting that the appellant had failed to advise the Board of any change in his
     address, the administrative judge declined to order the agency to travel 3,000 miles to
     take the deposition. IAF, Tab 32. When the appellant failed to appear at the deposition
     in San Diego, the agency filed another request for sanctions, seeking, inter alia, a ruling
     barring the appellant from submitting any evidence or relying on any evidence already
     submitted. IAF, Tab 60. The administrative judge found that the appellant voluntarily
     and intentionally failed to appear at the San Diego deposition and ruled that he was
     precluded from introducing as evidence concerning his affirmative defenses any
     statement under oath in which he made statements in the nature of evidence. IAF,
     Tab 76. The appellant has not challenged the administrative judge’s imposition of
     sanctions and we discern no basis upon which to disturb it. Smets v. Department of the
     Navy, 117 M.S.P.R. 164, ¶ 11 (2011) (finding that the administrative judge did not
     abuse her discretion when she precluded the appellant from submitting additional
     evidence regarding her claim of disability discrimination as a sanction for the
     appellant’s failure to comply with the administrative judge’s order to appear for
     a deposition).
                                                                                               6

      considerations was a motivating factor in his removal; that he pointed to no other
      employee, different from him on a protected basis, who was similarly situated to
      him but treated more favorably; and that, considering her finding that the agency
      proved that the appellant’s performance was unacceptable, he did not show that
      the agency’s stated reason for removing him was a pretext for discrimination. As
      such, she denied these affirmative defenses.         ID at 24-27.    The administrative
      judge next addressed the appellant’s claim that his removal was retaliatory based
      on the EEO complaint he had filed that was pending before the Equal
      Employment Opportunity Commission (EEOC) when he was removed. Although
      the administrative judge found that the complaint named most of the same
      officials involved in the appellant’s removal, she concluded, based on the strong
      evidence in the record supporting the appellant’s poor performance, that he failed
      to meet his overall burden of proving retaliation. ID at 27‑29.
¶8          Concluding that the appellant failed to show harmful procedural error,
      discrimination, or retaliation, the administrative judge affirmed the action, noting
      that the Board lacks the authority to mitigate penalties in performance-based
      actions taken under 5 U.S.C. chapter 43. ID at 19, 28-29.
¶9          The appellant has filed a petition for review, Petition for Review (PFR)
      File, Tab 1, the agency has responded in opposition, PFR File, Tab 3, and the
      appellant has replied thereto, PFR File, Tab 4.
¶10         The appellant argues on review that the administrative judge’s ruling on
      jurisdiction was “not consistent with procedure” and constituted an abuse of
      discretion. 4 PFR File, Tab 1 at 4, 17, Tab 4. The appellant contends that, if the


      4
        The appellant raised the issue of jurisdiction in a petition for review he filed prior to
      issuance of the initial decision. IAF, Tab 106. He explained that he did so as “a formal
      indication/notification that the record on this appeal is closed and no additional
      evidence/argument will be submitted or taken into account.” IAF, Tab 103. The
      administrative judge advised him that, until the initial decision was issued, Board
      regulations provide no procedure for a “premature” petition for review and that such
      pleadings would either be rejected or simply inserted into the file below. IAF, Tab 102.
                                                                                          7

      administrative judge had ruled on his order on jurisdiction, the appellant “will be
      the prevailing party and the issuance of an initial decision would be the resulting
      action.” PFR File, Tab 1 at 18.
¶11        As noted, when the appellant filed his appeal, he claimed that he did not
      receive the agency’s letter of decision. IAF, Tab 1 at 7. In acknowledging the
      appeal, the administrative judge advised him that jurisdiction does not vest until
      the agency has issued a final decision, that he had the burden to prove the Board’s
      jurisdiction over his appeal, and that, unless he amended his appeal to show that a
      final decision had been issued, it would be dismissed.         IAF, Tab 2 at 2.    In
      response, the appellant argued that the Board had jurisdiction over his appeal of
      his performance-based removal under 5 U.S.C. chapter 43. 5 IAF, Tab 3. After
      the agency submitted its file, IAF, Tabs 6-8, and indicated that it had no
      submissions to make as to whether the appeal fell within the Board’s jurisdiction,
      IAF, Tab 9, the administrative judge found that the Board had jurisdiction over
      the appeal and she discharged her earlier order to the appellant, IAF, Tab 10.
¶12        As such, the administrative judge did rule on the issue of jurisdiction and
      she ruled in the appellant’s favor on that point. However, that initial ruling only
      allowed the case to proceed to adjudication; it did not, as the appellant contends,
      render him a “prevailing party.” On the contrary, after examining the record, the
      administrative judge found that the agency had proven its performance-based
      charges against the appellant, and that he had not established any of his
      affirmative defenses, resulting in her affirming the agency’s action.             The
      appellant has not explained how the administrative judge’s ruling on jurisdiction
      was erroneous or how it otherwise adversely affected the outcome of the case


      The administrative judge received the appellant’s petition for review into the record,
      but, finding it lacking in substantive import, she did not address it. ID at 11 n.3.
      5
        At that time, the appellant was represented by counsel. IAF, Tab 1. His counsel
      subsequently withdrew, IAF, Tab 13, and thereafter the appellant appeared pro se,
      continuing to do so in this petition for review.
                                                                                      8

      since a contrary ruling would have resulted in the administrative judge’s
      dismissal of the appellant’s appeal without consideration of any of his claims or
      affirmative defenses.
¶13        On the merits, the appellant argues on review that he challenged every
      incident set forth in the PIP notice, and that only three were accurate. PFR File,
      Tab 1 at 14-15.   The record reflects that, with his response to the notice of
      proposed removal, the appellant submitted his response to the agency’s notice
      that he was to be placed on a PIP, which included his challenge to every case
      commentary relied upon by the agency in determining to place him on a PIP.
      IAF, Tab 7 at 63-98. However, there is no requirement that an agency establish
      the unacceptability of pre-PIP performance.     Thompson v. Department of the
      Navy, 89 M.S.P.R. 188, 196 (2001). The appellant did not at that time, nor during
      adjudication, specifically challenge the examples of unacceptable performance
      relied upon by the agency in proposing his removal.        The agency’s detailed
      proposal notice included numerous specific and detailed examples of the
      appellant’s unacceptable performance, 18 under critical element II, 27 under
      critical element IV, and 29 under critical element V. IAF, Tab 7 at 105-28; see
      DePauw v. U.S. International Trade Commission, 782 F.2d 1564, 1566‑67
      (Fed. Cir.) (observing that specifications in a notice of proposed removal under
      chapter 43 that are sufficiently detailed to be disputed by the appellant may be
      considered as evidence). In addition, the agency submitted copies of forms it
      used to provide written feedback on the appellant’s case work, IAF, Tab 70
      at 49-80, and a declaration by the appellant’s supervisor addressing his
      performance during the PIP, id. at 33-39.       Notwithstanding the appellant’s
      assertion on review that his performance was “not actually unacceptable,”
      PFR File, Tab 1 at 6, we agree with the administrative judge’s well-supported
      finding that the agency proved by substantial evidence that the appellant’s
      performance in one or more critical elements remained unacceptable despite
      being afforded an opportunity to improve, ID at 17‑19.
                                                                                                9

¶14           The appellant challenges on review the administrative judge’s finding that
      he did not establish his claim of harmful procedural error based on his alleged
      failure to receive the agency’s letter of decision. PFR File, Tab 1 at 10-12. The
      appellant first argues that none of the letters was mailed from the office of the
      deciding official who generated the letter.         Id. at 10.   Even assuming that the
      appellant is correct and that the source of the mailings constituted an error on the
      agency’s part, he has not shown how he was harmed thereby because he has failed
      to show, nor is it otherwise apparent, that any such error was likely to have
      caused the agency to reach a conclusion different than the one it would have
      reached in the absence or cure of the error.            Vena v. Department of Labor,
      111 M.S.P.R. 165, ¶ 9 (2009). Next, the appellant denies that he received the
      third letter, the one sent by first-class mail. PFR File, Tab 1 at 10. He contends
      that, if indeed the letter were sent, “most likely” the mail processing center would
      have returned it, as it did the others. Id. at 10-11. The Board presumes that
      documents placed in the mail are received in 5 days. Williamson v. U.S. Postal
      Service, 106 M.S.P.R. 502, ¶ 7 (2007).            The administrative judge found that
      evidence submitted by the agency supported its position that, like the other two
      letters, the third letter was mailed to the appellant at his address of record, which
      is a mail processing center, ID at 24 n.10, that that evidence was both internally
      consistent and consistent with documentary evidence sufficient to invoke the
      presumption of receipt, ID at 21-22, and that the appellant had offered nothing to
      rebut the presumption of receipt, ID at 23. The appellant’s mere supposition on
      review that the mail processing center likely returned the third letter is
      insufficient to rebut the presumption of receipt.           We find, therefore, that the
      appellant has not shown that the administrative judge erred in finding that he did
      not establish procedural error on the part of the agency as to his claimed
      nonreceipt of the letter of decision. 6


      6
          Despite the appellant’s claim that he did not receive the letter of decision, he filed a
                                                                                           10

¶15         Regarding the appellant’s other affirmative defenses, he states on review
      that he “will not request that the EEO matter be addressed within this petition for
      review,” PFR File, Tab 1 at 7, and indeed he has not challenged any of the
      administrative judge’s findings regarding his claims of discrimination and
      retaliation for protected EEO activity. 7 Based on our review, we find that the
      administrative judge applied current Board law to analyze these claims, see
      Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 42 (2015), and to find
      them unsupported. We discern no reason to reweigh the evidence or substitute
      our assessment of the record evidence for that of the administrative judge.
      Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997).
¶16         Finally, the appellant appears to argue on review that the administrative
      judge was biased against him because, in his view, she prejudged the appeal,
      ensuring that the agency’s action would be affirmed. PFR File, Tab 1 at 13, 16.
      An administrative judge’s conduct during the course of a Board proceeding
      warrants a new adjudication only if the administrative judge’s comments or
      actions evidence “a deep-seated favoritism or antagonism that would make fair
      judgment impossible.”       Bieber v. Department of the Army, 287 F.3d 1358,
      1362‑63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555
      (1994)).    However, in making a claim of bias or prejudice against an
      administrative judge, a party must overcome the presumption of honesty and
      integrity that accompanies administrative adjudicators. Oliver v. Department of
      Transportation, 1 M.S.P.R. 382, 386 (1980). The appellant’s complaints about
      the administrative judge’s conduct in the adjudication of his appeal do not
      evidence anything that would make fair judgment impossible and are insufficient
      to overcome the presumption of honesty and integrity that accompanies

      timely appeal of the agency’s action. IAF, Tab 1.
      7
        We need not address the appellant’s claims regarding the EEOC’s processing of a
      complaint he allegedly filed in 2015, PFR File, Tab 1 at 7-9, a matter nowhere raised in
      this appeal.
                                                                                11

administrative adjudicators.     Young v. U.S. Postal Service, 115 M.S.P.R. 424,
¶ 19 (2010).

                 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:
                           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.
                                                                                12

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.    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.
