                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                     2008-3056

                                CHERYL K. CROWE,

                                                           Petitioner,

                                          v.

                         DEPARTMENT OF AGRICULTURE,

                                                           Respondent.


      Cheryl K. Crowe, of Saint Paul, Minnesota, pro se.

       Joseph E. Ashman, 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, Assistant Attorney General; Jeanne E. Davidson,
Director; and Kirk T.Manhardt, Assistant Director.

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                            NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit


                                          2008-3056

                                      CHERYL K. CROWE,

                                                                         Petitioner,

                                              v.

                           DEPARTMENT OF AGRICULTURE,

                                                                         Respondent.


Petition for review of the Merit Systems Protection Board in CH0432070133-I-1.
                            ___________________________

                           DECIDED: April 11, 2008
                           ___________________________


Before GAJARSA, Circuit Judge, CLEVENGER, Senior Circuit Judge, and MOORE,
Circuit Judge.

PER CURIAM.

      Cheryl K. Crowe appeals the final order of the Merit Systems Protection Board

(Board) denying her petition for review regarding her performance-based removal.

Crowe v. Dep’t of Agric., No. CH0432070133-I-1 (Sept. 4, 2007). When the Board

denied review, the AJ’s decision became the final decision of the Board.               For the

reasons set forth below, we affirm.

                                      BACKGROUND

      On April 22, 1979, at the age of 17, Ms. Crowe began employment with the

United States Department of Agriculture. By July 1, 2002, Ms. Crowe had taken on the

title of Human Resources Assistant with the agency’s Animal and Plant Health
Inspection Service in Minneapolis, Minnesota.         Her duties in this position included

preparing vacancy announcements for positions in the agency and assessing the

eligibility of applicants applying for these vacancies.

       On August 19, 2003, Ms. Crowe received and signed a performance plan for a

two-level performance appraisal program covering a one-year review period from July 1,

2003 to June 30, 2004. Under the performance plan, Ms. Crowe’s work performance

was to be evaluated pursuant to four critical job elements:              (1) Eligibility and

Qualifications Determinations; (2) Preparation of Vacancy Announcements; (3)

Customer Service; and (4) Communications. The performance plan outlined the level of

performance expected to achieve a rating of “fully successful” for each element.

       On July 14, 2004, Ms. Crowe received a rating of “unacceptable” for the first

critical element, “Eligibility and Qualifications Determinations,” and “fully successful” for

the latter three critical elements. Because of her “unacceptable” rating, Ms. Crowe was

placed on a sixty-day performance improvement plan. Ms. Crowe’s supervisor notified

her by letter that all of her work product and performance would be reviewed and

monitored closely during the performance improvement period. The letter summarized

deficient areas in Ms. Crowe’s performance that resulted in the “unacceptable” rating

and provided suggestions for improving her performance. The letter also warned Ms.

Crowe that, should she fail to improve her performance to a fully successful level and

maintain such a level for at least one year, the supervisor would recommend that she be

removed from her position.

       On September 16, 2004, at the end of the performance improvement period, Ms.

Crowe’s supervisor informed her by a second letter that her performance remained at




2008-3056                                 2
an unacceptable level for the “Eligibility and Qualifications Determinations” critical

element. The letter specifically noted that Ms. Crowe had processed only half of the

announcements assigned to her during the sixty-day period and that 25% of the

processed announcements contained errors. However, taking into consideration the

fact that Ms. Crowe had processed a limited number of files, the supervisor extended

her performance improvement period for another sixty days to give her the opportunity

to improve her performance to an acceptable level. As before, the letter summarized

the areas of deficiencies in Ms. Crowe’s performance and provided suggestions for

improvement. The letter also reiterated that the supervisor would recommend removal

should Ms. Crowe fail to improve her performance to a fully successful level.

      At the completion of her extended performance improvement period, the

supervisor determined that the error rate of Ms. Crowe’s assignments had increased to

33%. Consequently, on December 10, 2004, the agency issued Ms. Crowe a notice of

a proposal to remove her from employment as her performance under the critical

element in question remained unacceptable. On February 17, 2005, the agency issued

its decision removing Ms. Crowe from employment, effective February 18, 2005.

      Ms. Crowe appealed the agency’s removal action to the Board on November 13,

2006. On April 4, 2007, the AJ issued an initial opinion sustaining the agency’s removal

action, which Ms. Crowe appealed to the full Board. The Board denied her petition for

review, and the AJ’s decision became the final decision of the Board.

      Ms. Crowe filed an appeal to this court. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).




2008-3056                               3
                                      DISCUSSION

       Our review of Board decisions is limited to setting aside agency actions, findings,

or conclusions that are “(1) arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C.

§ 7703(c); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140 (Fed. Cir. 1986).

When reviewing decisions regarding performance-based actions covered by 5 U.S.C.

§§ 4301 et seq., “both the Board and the courts should give deference to the judgment

by each agency of the employee's performance in light of the agency's assessment of

its own personnel needs and standards.” Lisiecki v. Merit Sys. Prot. Bd., 769 F.2d

1558, 1562 (Fed. Cir. 1985) (internal citation omitted).

       The AJ sustained the agency’s removal decision based on, inter alia, findings of

substantial evidence that the agency had (1) provided Ms. Crowe with written notice of

the performance standards regarding the “Eligibility and Qualifications Determinations”

critical element in her performance plan, which Ms. Crowe signed herself on August 19,

2003 and January 29, 2004, (2) outlined the specific bases for her unacceptable

performance rating, and (3) afforded her two separate sixty-day performance

improvement periods along with suggestions for improvement.

       Ms. Crowe raises a number of affirmative defenses on appeal, but has not

identified any law that was incorrectly applied, facts that were incorrectly decided, or

facts in the record that the AJ failed to consider that would call into question the Board’s

decision. While we appreciate the petitioner’s length of service with the agency, we




2008-3056                                4
must affirm the final decision of the Board because it is supported by substantial

evidence.

                                     COSTS

      No costs.




2008-3056                            5
