Petition for review of the Merit Systems Protection Board decision DE-0432-07-0345-I-1.
The opinion of the court was delivered by: Friedman, Circuit Judge.
Before RADER, FRIEDMAN, and LINN, Circuit Judges.
A former federal employee challenges the Merit Systems Protection Board ("Board")'s affirmance of his removal by the Department of Agriculture ("Department") on the grounds that the Board erroneously determined that (1) the Office of Personnel Management ("OPM") had approved the Department's performance appraisal system under which it had removed him; (2) the Department gave him an opportunity to demonstrate that his work was acceptable; and (3) his job requirements were feasible. We conclude that the record is inadequate for us to determine whether OPM had approved the performance appraisal system under which the removal was effected. We therefore vacate the Board's decision insofar as it held that OPM approval had been shown, and remand for the Board further to develop the record and to make additional findings and conclusions on that issue based on the augmented record. We affirm the Board's ruling on the other two issues.
In 2006 and for a number of years before that, the appellant, Dr. Floyd J. Adamsen, was a soil research scientist with the Department. He was doing research on nitrogen fertigation management. As the administrative judge's opinion stated, "[f]ertigation is an irrigation process where water and nutrients are mixed together and then applied to plants."
Eachyear Dr. Adamsen was given an annual performance plan and was rated for his performance during that year. The plan set forth various categories of his work, which were divided into critical and non-critical elements. For each category, there were three possible ratings: "exceeds," "meets," or "does not meet" the standard "fully successful." A significant aspect of an item being "critical" is that a failure to be rated at least "fully successful" under that item may result in adverse employment action against the employee, including removal.
Dr. Adamsen's work for 2005 had been rated "fully successful."
Dr. Adamsen's 2006 performance plan included three critical elements, only the first of which is involved here. Critical Element 1 was headed: Dr. Adamsen "Conceives, Plans, and Conducts Research." That item set forth in some detail the various tasks Dr. Adamsen was required to perform in order to be rated as "fully successful" under that critical element. One of these was use ADE and SRFR models to develop fertilizer injection strategies for furrow irrigation[.]
As the administrative judge explained, these are "analytical models used to develop fertigation injection strategies."
In 2003 Dr. Adamsen had been placed on a performance improvement plan by his supervisor, Dr. Clemmens. As its title reflects, such a plan is designed to give an employee whose work has not been satisfactory the opportunity to improve his performance. Under such a plan, the employee is told the defects in his work and is closely supervised during the plan. After Dr. Adamsen had completed his performance improvement plan, Dr. Clemmens rated his performance as "fully successful."
During his mid-year performance review in July, 2006, Dr. Clemmens told Dr. Adamsen that he was below "fully successful" on three critical elements, including Critical Element 1. The following month Dr. Clemmens notified Dr. Adamsen in writing that his performance on those three critical elements was unacceptable. In that notice, Dr. Clemmens once again placed Dr. Adamsen on a ninety-day performance improvement plan.
In describing Dr. Adamsen's deficiency in Critical Element 1, Dr. Clemmens stated that "your plans for developing fertigation strategies are . not sufficiently thorough." Dr. Clemmens gave Dr. Adamsen three criteria on which his performance under Critical Element 1 during the plan would be evaluated, and also "reminded" Dr. Adamsen that he "must complete the requirements of your performance plan for the current rating period as well." The three criteria all involved Dr. Adamsen developing plans for accomplishing his annual tasks. Of particular relevance to this appeal was the second criterion:
2. Provide a detailed plan for research on the development of fertigation strategies, including strategies to be investigated, the ranges of irrigation systems/variables considered, and how you will evaluate appropriate strategies over these range of conditions.
The performance improvement plan did not specifically refer to the requirement in Dr. Adamsen's 2006 performance plan that he "use ADE and SRFR models to develop fertilizer injection strategies."
On November 15, Dr. Clemmens rated Dr. Adamsen "fully successful" under the performance improvement plan, which had ended eight days earlier. During November Dr. Clemmens met informally more than oncewith Dr. Adamsen and discussed the need "to get the ADE model working."
The performance improvement plan had told Dr. Adamsen that he "may also be subject to demotion or removal without being given another opportunity to improve" if he did not maintain "fully successful" performance for at least a year from the start of the plan. The Department reiterated this warning in its ...