                       NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2008-3127

                                ROLAND A. DOBSON,

                                                     Petitioner,

                                          v.

                           DEPARTMENT OF THE NAVY,

                                                     Respondent.


      Roland A. Dobson, of Virginia Beach, Virginia, pro se.

       Sean B. McNamara, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Kenneth M. Dintzer, Assistant Director. Of counsel on the brief
was Patricia R. Reddy-Parkinson, Assistant Counsel, Department of the Navy, of
Virginia Beach, Virginia.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                      2008-3127

                                ROLAND A. DOBSON,

                                               Petitioner,

                                          v.

                           DEPARTMENT OF THE NAVY,

                                               Respondent.


    Petition for review of the Merit Systems Protection Board in DC0432070408-I-1.

                          ___________________________

                          DECIDED: July 21, 2008
                          ___________________________


Before LOURIE, BRYSON, and PROST, Circuit Judges.

PER CURIAM.

                                      DECISION

      Roland A. Dobson appeals the final decision of the Merit Systems Protection

Board, which affirmed his removal from his position with the Department of the Navy for

unacceptable performance. We affirm.

                                   BACKGROUND

      Mr. Dobson worked as a human resources specialist at the Navy’s Military Sealift

Command in Virginia Beach, Virginia. In 2005, Mr. Dobson was sent a letter of caution

about his job performance, and in 2006 he was placed on a performance improvement
plan (“PIP”). The plan included a description of Mr. Dobson’s past job performance

problems, how Mr. Dobson could improve his work, and the details of how he would be

monitored during a 60-day evaluation period.

         At the end of the monitoring period, the Navy proposed to remove Mr. Dobson

based on five violations of “critical element #2” of the performance appraisal system.

That element set forth the following requirements:

         Accepts work assignments, properly follows instructions, uses technical
         knowledge, applies skills and plans, organizes and works effectively and
         efficiently to produce products and/or services of good quality in a timely
         and responsive manner.         Anticipates and analyzes problems and
         determines solutions that include improvement of work processes.
         Promotes teamwork: works well with others and takes responsibility as
         either a team leader or team member as required.

After Mr. Dobson had an opportunity to respond to the notice, the Navy removed him for

unacceptable performance.

         Mr. Dobson appealed his removal to the Board.          Following a hearing, the

administrative judge who was assigned to the appeal upheld Mr. Dobson’s removal.

The full Board denied a petition for review. Mr. Dobson now petitions for review by this

court.

                                       DISCUSSION

         1.   Citing the Board’s decision in Johnson v. Department of the Interior, 87

M.S.P.R. 359 (2000), Mr. Dobson first argues that the PIP was invalid because it held

him to an impermissible “absolute” standard of performance. However, this court has

disapproved the line of Board decisions that includes Johnson on the ground that

chapter 43 of Title 5, which governs performance appraisals of federal employees and

adverse actions based on unacceptable performance, does not prohibit the use of




2008-3127                                    2
absolute standards. Guillebeau v. Dep’t of the Navy, 362 F.3d 1329, 1337 (Fed. Cir.

2004).

         Guillebeau emphasizes that performance standards must be “reasonable, based

on objective criteria, and communicated to the employee in advance.” 362 F.3d at

1337.     The court added that by holding that there is no strict bar to absolute

performance standards, it did not mean to suggest “that an agency may adopt an

unreasonable standard or that absolute performance standards are always reasonable.”

Id. The court made clear, however, that a demanding standard is not necessarily an

unreasonable one. Indeed, even in Johnson, on which Mr. Dobson relies, the Board

upheld a performance standard system that permitted the employee to receive no more

than four customer complaints during her evaluation period. 87 M.S.P.R. at 366-67. In

this case, Mr. Dobson was presented with a list of criteria describing critical element #2,

and he was allowed two errors.       Although he objects to that standard, he has not

presented any specific argument as to why that number of errors, although small,

represented an unreasonable error rate, nor has he provided any reason to believe that

the required level of performance was unobtainable.

         2. Mr. Dobson argues that the PIP was invalid because critical element #2 was

too vague. He contends that the Navy simply used part of his position description rather

than a standard explicitly designed for evaluation purposes. The administrative judge

concluded that the part of the PIP that Mr. Dobson was charged with violating, critical

element #2, was valid, stating that “the evidence of record does not show, and the

appellant has not established, that the cited performance element and associated

performance standard was vague, unreasonable, improper, and/or unattainable.”




2008-3127                                   3
Moreover, the administrative judge noted that “[p]erformance elements and standards

may be derived from the employee’s official position description.” The administrative

judge also found that Mr. Dobson had never asked his supervisors for clarification of

any of the elements, although he was given several opportunities to do so. Accordingly,

we reject Mr. Dobson’s argument that the Board erred in concluding that the PIP was

invalid on the ground that it was too vague.

      In his reply brief, Mr. Dobson directs this court’s attention to several Board

decisions to support his assertion that the PIP was impermissibly vague. See Smith v.

Dep’t of Veterans Affairs, 59 M.S.P.R. 340 (1993) (“Smith I”); Burroughs v. Dep’t of

Health & Human Servs., 49 M.S.P.R. 644 (1991); Smith v. Dep’t of Energy, 49 M.S.P.R.

110 (1991) (“Smith II”); Shuman v. Dep’t of the Treasury, 23 M.S.P.R. 620 (1984).

However, Smith I is among the cases that were disapproved by Guillebeau, discussed

above. Shuman addresses only the right of an employee to present evidence as to

whether performance standards were been adequately communicated, 23 M.S.P.R. at

632-33, and Mr. Dobson does not allege that he was precluded from presenting any

such evidence.

      The remaining two cases address the issue of vagueness, but they do not

warrant overturning the Board’s findings in this case. In Smith II, the Board affirmed the

administrative judge’s determination that the use of the word “sometimes” in a standard

for marginally acceptable performance was impermissibly vague. 49 M.S.P.R. at 116.

By contrast, in this case the administrative judge found that critical element #2 was not

impermissibly vague, and the holding in Smith II provides no basis for overturning that

highly factual inquiry as a matter of law, especially given the differences between the




2008-3127                                      4
standard in that case and the one at bar, which notably does not use any word such as

“sometimes.” In Burroughs, the Board determined that the performance improvement

plan identified unacceptable performance through the use of negative terms rather than

identifying the conduct that was necessary to achieve minimally acceptable

performance. 49 M.S.P.R. at 650-51. In this case, the Board concluded that critical

element #2 identified what was required for acceptable performance.             Accordingly,

Burroughs does not warrant overturning the Board’s decision.

       3.   Mr. Dobson asserts that his removal must be overturned because his

supervisors “did not fully comprehend” the performance appraisal system, and that they

did not communicate it to him adequately.          In his reply brief, Mr. Dobson further

develops that argument, citing Jimenez-Howe v. Department of Labor, 35 M.S.P.R. 202

(1987), and Smith II. In Jimenez-Howe, the Board explained that the communication

requirement would be satisfied if the agency communicated “to the employee the

standards he must meet in order to be evaluated as demonstrating performance at a

level which is sufficient for retention” and that agencies “may give sufficient specificity to

their performance standards by written and oral instructions to meet the statutory

requirements.”    35 M.S.P.R. at 207-08 (internal quotation marks omitted); see also

Smith II, 49 M.S.P.R. at 116-17 (“an agency must communicate to the employee

performance standards that are sufficiently specific to provide the employee with a firm

benchmark toward which to aim his performance, and not an elusive goal that the

agency may find the employee met or failed to meet at its pleasure”). In Mr. Dobson’s

case, the Board found that Mr. Dobson’s supervisors understood the standards and that

they attempted to communicate them to Mr. Dobson through the performance




2008-3127                                     5
improvement plan and through verbal communication from his first-level supervisor. Mr.

Dobson’s arguments do not undermine those findings made by the Board, which are

supported by substantial evidence.

       4. Mr. Dobson argues that it was unclear whether there were “two, three, or four

critical elements.” As we noted above, Mr. Dobson’s removal was based only on critical

element #2, and therefore this argument, which goes to the structure of the performance

plans in general, is not directly pertinent to Mr. Dobson’s removal. The administrative

judge noted that the performance plans given to some employees listed four critical

elements even though their titles stated that there were only three. Mr. Dobson’s plan

did not contain that error, however.   His argument therefore presents no basis for

reversal.

       5.   Mr. Dobson next claims that the Navy never presented proof that the

performance plan or the acceptable error rate under that plan was ever submitted to a

human resources specialist for analysis. An agency’s performance appraisal system

must be approved by the Office of Personnel Management before the agency can seek

to remove an employee for unacceptable performance under chapter 43. 5 U.S.C.

§ 4304(b)(1). There is, however, no requirement for a plan to be submitted to a human

resource specialist. Mr. Dobson cites Daigle v. Department of Veterans Affairs, 84

M.S.P.R. 625 (1999), for the proposition that an “agency must establish their

performance action is based on a valid performance standard as approved by OPM.”

That case, however, establishes the rule that an agency does not need to submit

updated proof that its performance improvement plan was approved by the OPM unless




2008-3127                                  6
approval is directly called into question during proceedings before the Board.        The

Board explained that

      [w]hile the agency's burden of proof was an important element in the early
      implementation of the new law, this case provides an opportunity to revisit
      the merits of continuing the current Board policy. Twenty years have
      passed since the enactment of the Civil Service Reform Act. There is no
      statutory requirement for renewing approval of an agency's performance
      appraisal system once in place, and we are unaware of any agency which
      has not received OPM approval of its performance appraisal system.
      Therefore, we conclude that it is no longer necessary to perpetuate an
      outmoded paperwork requirement.

Id. at 630-31. Daigle therefore modifies the rule described in the other case cited by Mr.

Dobson, Stenmark v. Department of Transportation, 59 M.S.P.R. 462, 467-68 (1993),

and only requires proof of OPM approval where such approval is contested before the

Board. In this case, the Board determined that Mr. Dobson had not raised this issue.

Because Mr. Dobson is therefore calling into question OPM approval for the first time on

appeal, instead of before the Board itself, the cases Mr. Dobson cites are not relevant.

In any event, this court will ordinarily not hear new arguments for the first time on

appeal, Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998), and thus Mr.

Dobson has waived this issue.

      6. Mr. Dobson argues that the five cited violations of critical element #2 do not

support his removal. Regarding the first error, the Board found that Mr. Dobson was

originally given an assignment on June 6, 2006, that his supervisor reminded him about

it by email on June 23. During a subsequent meeting, Mr. Dobson claimed that he had

forgotten about the task. On appeal, Mr. Dobson argues that he was never given a due

date for the assignment, so it could not technically be “late.”     He also argues that

because the original assignment was dated June 6, and his performance review period

did not start until June 23, any alleged error took place outside the review period.


2008-3127                                   7
However, one of the requirements of critical element #2 was that work be completed “in

a timely and responsive manner,” and the Board’s determination that Mr. Dobson’s

performance on that requirement fell short is supported by evidence on the record that

Mr. Dobson forgot about the assignment and needed to be reminded of it. Although the

initial task was assigned on June 6, the error of Mr. Dobson’s continued non-

performance took place during the review period.

       Mr. Dobson also argues that error number 4, which involved a job

announcement, should not count against him because he was “told to amend the [job]

announcement and he did.” The notice of proposed removal, however, specifies that

Mr. Dobson was instructed to amend the job announcement in a specific way, and that

he failed to follow those instructions. Likewise, Mr. Dobson claims that error number 5

should not count against him because he recalled an improperly sent email less than

one minute after it was initially sent. Although the error may have been corrected, Mr.

Dobson’s supervisors were concerned that such mistakes undermined the credibility of

the office.   The Board reviewed each of those errors and found that Mr. Dobson

admitted making them, even though he protested that they were not sufficient to justify

his removal. We hold that the Board’s decision upholding those errors as constituting

violations of critical element #2 is supported by substantial evidence.

       Mr. Dobson argues that error number 2 and error number 3 took place outside of

the review period. For error number 2, the proposed notice states that on June 25,

2006, Mr. Dobson’s supervisor became aware that Mr. Dobson had incorrectly

promoted a sailor. The notice does not state when Mr. Dobson made the entry that led

to the incorrect promotion.    Likewise, the notice does not state when Mr. Dobson




2008-3127                                    8
committed error number 3, but simply states that the matter was brought to Mr.

Dobson’s attention on July 14. The government’s brief does not identify anywhere in

the record where the dates of the commission of the errors can be found. Accordingly,

we have not considered those errors as counting towards the two necessary for a

violation of critical element #2 under the PIP. (Mr. Dobson additionally argues that

those errors should have been counted as violations of critical element #4 rather than

critical element #2, but given our holding that the evidence does not show that the

errors occurred during the PIP period, we do not need to reach that issue.) Although

those errors may have been improperly included, their inclusion is harmless because

the three errors previously discussed adequately support the removal action, which

required only two errors.

      7. Mr. Dobson further claims that the administrative judge failed to consider

various factual allegations. Mr. Dobson claims that the Board did not consider that he

had more than “30 years of excellence in government and military service” and that “all

was well” as of his November 2005 midyear review. The Board provided a detailed

analysis of why the Navy’s removal of Mr. Dobson was justified based on documented

performance deficiencies during his 60-day evaluation period. Although Mr. Dobson

may have performed at a satisfactory level during most of his career, the Navy was

concerned that his performance had deteriorated.        Under the rules applicable to

performance improvement plans, only Mr. Dobson’s performance during the 60-day

evaluation period was relevant to the Board’s analysis and decision.

      8. Mr. Dobson argues that the Board failed to consider his claims of a hostile

work environment.      However, this court lacks jurisdiction to consider claims of




2008-3127                                  9
discrimination and therefore cannot reach that issue. Williams v. Dep’t of the Army, 715

F.2d 1485, 1491 (Fed. Cir. 1983) (en banc). Mr. Dobson also contends that mitigating

circumstances, including medical and health-related problems, were not considered by

the administrative judge.   But the record reveals that the Board considered that

evidence and noted that Mr. Dobson had not submitted any documentation of a medical

condition during the entire evaluation period, even though the performance

improvement plan stated that Mr. Dobson should “notify [his supervisor] of any

extenuating circumstances,” and that counseling was available if he felt he had any

problems.

      9. Finally, Mr. Dobson argues that the administrative judge impermissibly failed

to consider lesser penalties.    However, in the context of a chapter 43 removal for

unacceptable performance, the Board does not have the authority to lessen the

employing agency’s chosen penalty. Lisiecki v. Merit Sys. Prot. Bd., 769 F.2d 1558,

1566-67 (Fed. Cir. 1985).       We therefore uphold the Board’s order sustaining Mr.

Dobson’s removal.




2008-3127                                  10
