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April 4, 1989

RICHARD E. LYNG, Secretary, Department of Agriculture

The opinion of the court was delivered by: VAN ANTWERPEN


 Plaintiff, James T. Shieh, filed this suit on January 15, 1988 against Richard E. Lyng, Secretary of the United States Department of Agriculture ("USDA" or "agency"), alleging discrimination on the basis of his race (Asian) and national origin (Taiwanese) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16. Plaintiff also appeals from an unfavorable action of the Merit Systems Protection Board ("MSPB") under the Civil Service Reform Act of 1978, 5 U.S.C. § 7703, claiming that the agency abused its discretion in reducing him in grade and that there is no substantial evidence supporting the agency's actions.

 This court has jurisdiction over plaintiff's claims pursuant to 42 U.S.C. § 2000e-5(f)(3) and 5 U.S.C. § 7702(a)(3). Because this matter is considered a "mixed case," in that the adverse action is challenged on both discriminatory and nondiscriminatory grounds, this Court is designated to hear the claims. 5 U.S.C. § 7703(b)(2); Rias v. Walters, No. 84-5427, (E.D.Pa. Aug. 19, 1986)(LEXIS, Genfed Library, Dist file). We hear the claims of discrimination under 42 U.S.C. § 2000e de novo, see id., and we hear the appeal from the MSPB on a standard requiring proof that the action was (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); Parker v. U.S. Postal Service, 819 F.2d 1113 (Fed. Cir. 1987). From the non-jury trial held on February 27, 1989 through March 2, 1989, we make the following findings of fact.


 1. Plaintiff James J. Shieh is an Asian male who was born in Taiwan in 1941. He obtained a B.S. degree in Agricultural Chemistry from National Taiwan University in 1964. He came to the United States in a fellowship program for a Ph.D. at the University of Utah when he was 26 years old. Plaintiff became an American citizen in 1976 and presently resides in Pennsylvania.

 2. Plaintiff obtained his Ph.D. in 1972 and presently is an employee of the United States Department of Agriculture ("USDA") and has worked at the USDA Eastern Regional Research Center ("ERRC") offices located at 600 East Mermaid Lane, Philadelphia, Pennsylvania, since August, 1981.

 3. Prior to plaintiff's employment with the USDA, he worked as an associate investigator in the Chemistry Department of Boston University from 1976 through 1980, and as a research chemist with the United States Army Research and Development Laboratory in Natick, Massachusetts, from 1980 through August, 1981. At Natick, he worked with a Dr. Wierbicki until Dr. Wierbicki went to work for the USDA.

 5. Scientists in grade GS-12 are classified as either Category 1 or Category 3. Category 1 scientists are required, among other things, to conceive and carry out research and write manuscripts under general supervision, whereas Category 3 scientists do not have to conceive research projects, define their objects, or produce final manuscripts in publishable form. Category 1 scientists are expected to senior author one published paper or co-author at least two papers each year. Category 3 scientists fulfill a support role, and are not expected to publish manuscripts. Within Category 3, GS-12 scientists are expected to display more leadership ability than GS-9 scientists. Before his demotion, plaintiff was serving as a Category 1, GS-12 scientist.

 6. In 1983, plaintiff and eight or ten persons, including others from his group, received training on a measuring device called the Electron Spin Resonator ("ESR"). Plaintiff did ESR work at the laboratory in addition to his other work. He was also trained on the Cesium 130 Radiation Source.

 7. Although others had training, he was the only one in the Center who operated the ESR equipment. Dr. Wierbicki did not object to this. He spent about ten hours a week operating the ESR equipment and ten hours a week operating the radiation source.

 8. Plaintiff's initial first level (immediate) supervisor at ERRC was Dr. Eugene Wierbicki, a Supervisory Research Food Technologist. Dr. Wierbicki had previously worked with plaintiff and had suggested that the ERRC hire him. Plaintiff's second level supervisor at that time was Dr. Donald Thayer. At that time, Dr. Wierbicki consistently gave plaintiff "fully satisfactory" ratings and Dr. Thayer concurred with these ratings. He also noted in writing that plaintiff had to spend much time working with ESR and the radiation source equipment.

 9. On May 12, 1985, the ERRC reassigned Dr. Wierbicki was reassigned to a non-supervisory position in which he would concentrate on scientific and research areas. Following Dr. Wierbicki's reassignment, Dr. Thayer became plaintiff's immediate (first level) supervisor.

 10. Problems arose between Dr. Thayer and the plaintiff concerning plaintiff's ability to prepare written manuscripts. Specifically, plaintiff had difficulty both defining a written hypothesis which clearly and concisely stated the object of his research and providing a data base for his work. Papers authored by plaintiff and reviewed by Dr. Thayer bear multiple written mark-ups, suggestions, and changes.

 11. In 1984, a USDA Peer Panel reviewed plaintiff and concluded that his position was proper but the panel also expressed concern with plaintiff's lack of documentation of research efforts in his scientific literature.

 12. In September, 1985, plaintiff received a job performance appraisal for the rating period of September 4, 1984 through September 2, 1985. Plaintiff's performance appraisal included two critical elements: performing investigations and dissemination of results. Plaintiff received a less than acceptable rating overall and on one of the critical elements.

 13. Under USDA policies and procedures, a "critical element" is a component of an employee's job which is of sufficient importance that performance below the minimal standard established by management requires remedial action and denial of a within-grade increase, and may be the basis for removing or reducing the grade level of the employee.

 14. On September 12, 1985, Dr. Thayer discussed with plaintiff the performance objectives and requirements for plaintiff's position as research chemist GS-12. Dr. Thayer assigned a total of five elements. At that time, Dr. Thayer designated only element one ("conceives, defines and plans research proposals") as a critical element.

 15. As part of his performance requirements for the September 1985 -- September 1986 appraisal period, Dr. Thayer required plaintiff to prepare two research proposals by November 1, 1985: (1) a proposal emphasizing the effects of low dose irradiation on proteins; and (2) a proposal emphasizing the effects of low dose irradiation on lipids of poultry. During this period, Dr. Thayer also required plaintiff to ...

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