Appealed from: Merit Systems Protection Board.
Newman, Bissell, and Archer, Circuit Judges.
Petitioner Martin seeks review of a final decision of the Merit Systems Protection Board (Board), Docket No. NY04328510133, sustaining his removal for unacceptable performance. We affirm.
In April 1983, Martin was hired by the Federal Aviation Administration (agency) as a Realty Specialist, GS-11. The agency issued to Martin in June 1984 a letter of warning of unacceptable performance and Martin was allowed ninety days in which to improve his performance. On October 17, 1984, the agency issued a notice of proposed removal charging Martin with three instances of unacceptable performance under one critical element of his job and four instances of unacceptable performance under another critical job element. Martin was removed effective November 19, 1984.
Martin asserts both procedural and substantive errors by the agency in effecting his removal.
This court's scope of review is limited by 5 U.S.C. § 7703(c). We affirm a decision of the Board sustaining the dismissal of a federal employee if the "decision complies with the applicable statute and regulations and [if] it has a rational basis supported by substantial evidence from the record taken as a whole." Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). This court's role is further circumscribed when reviewing a performance-based action taken under Chapter 43 of Title 5 of the United States Code. As the court stated in Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1562 (Fed. Cir. 1985) (quoting S. Rep. No. 969, 95th Cong., 2d Sess. 10 (1978)):
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.
If the error was procedural in nature, it is well settled that petitioner is required to demonstrate that the asserted procedural error was harmful. Handy v. United States Postal Service, 754 F.2d 335, 337-38 (Fed. Cir. 1985). If the error was substantive, the agency's action will not be sustained. Wilson v. Department of Health and Human Services, 770 F.2d 1048, 1054 (Fed. Cir. 1985).
The requirements incumbent upon an agency in effecting a proper Chapter 43 removal or demotion action are to set up an approved performance appraisal system, communicate the written performance standards and "critical elements" of an employee's position to the employee at the beginning of the appraisal period, warn of inadequacies in "critical elements" during the appraisal period, and counsel and afford an opportunity for improvement after proper notice. Lovshin v. Department of the Navy, 767 F.2d 826, 834 (Fed. Cir. 1985) (in banc), cert. denied, 475 U.S. 1111, 106 S. Ct. 1523, 89 L. Ed. 2d 921 (1986). If those requirements have been satisfied, "an agency may reduce in grade or remove an employee for receiving a rating of 'unacceptable' with respect to even a single 'critical element'." Id. (emphasis in original).
The first error alleged to have been committed by the agency in removing Martin is that he was denied a reasonable opportunity to demonstrate acceptable performance. Martin contends this right is a substantive statutory one, citing Sandland v. General Services Administration, 23 M.S.P.R. 583 (MSPB 1984). In that case, the Board concluded:
Based on the statute, the implementing regulations and the legislative history, we find that an employee's right to a reasonable opportunity to improve is a substantive right; indeed, it is one of the most important rights, benefiting both the ...