The opinion of the court was delivered by: Diamond, J.
Plaintiff Cesar Lee worked as an Environmental Engineer in the Environmental Protection Agency's Philadelphia Office when he was fired on March 27, 2009, for poor performance. (MSPB R. tab 4b.) The Merit System Protection Board affirmed the EPA's termination decision. Lee v. E.P.A., 115 M.S.P.R. 533 (2010). Plaintiff now proceeds against the EPA's Administrator and the Agency itself, challenging the evidentiary sufficiency and procedural adequacy of his firing. See 5 U.S.C. §§ 4301, et seq. He also alleges, under Title VII, that the EPA fired him because he is Chinese-American. 42 U.S.C. §§ 2000e, et seq.
The Parties have cross-moved for summary judgment. I will enter judgment for the Government.
From 2003 to 2009, Plaintiff served as the Federal Agency Hazardous Waste Compliance Docket Coordinator for EPA Region III. (MSPB Hrg. Tr. 276:20-22.) The EPA is required to maintain the Docket, which tracks and identifies hazardous waste facilities "that should be evaluated to determine if they pose a threat to public health or welfare and the environment." Federal Agency Hazardous Waste Compliance, 73 Fed. Reg. 71,644, 71,644-45 (Nov. 25, 2008).
Among the Coordinator's tasks is delisting from the Docket "small quantity" hazardous waste generators because they pose no significant threat. (MSPB R. tab 4s; see also MSPB Hrg. Tr. 87:20-23.) Sites listed on the EPA's "National Priorities List," however, are significant hazardous waste generators that warrant close monitoring. (MSPB R. tab 26y.) The Coordinator is instructed that "NPL" sites "must be listed on the Docket." (MSPB R. tab 4g, at 2.) Mistakenly delisting an NPL site could disrupt EPA monitoring, and so create an environmental or health hazard. See Federal Agency Hazardous Waste Compliance, 73 Fed. Reg. at 71,644-45.
The EPA evaluated Plaintiff through its "Performance Appraisal and Recognition System," by which the Agency puts employees on "performance plans" comprised of two to five "critical elements." (See MSPB R. tab 4w.) As the name suggests, each "PARS" critical element is an "assignment or responsibility of such importance that unacceptable performance on the element would result in a determination that an employee's overall performance is unacceptable." 5 C.F.R. § 432.103(b); (MSPB R. tab 4w, at 4.) Although a performance plan may contain no more than five critical elements, each element may comprise multiple "subelements." See, e.g., Rogers v. Dep't of Def. Dependents Sch., 814 F.2d 1549, 1554 (Fed. Cir. 1987).
The Agency "grades" performance on each critical element. "Unacceptable," is the lowest rating and reflects late work; "frequent deficiencies in creativity, skill, and knowledge;" and a regular lack of clarity in both verbal and written communications. (MSPB R. tab 4h, at 4.) Although a "Minimally Satisfactory" rating reflects "occasional" deficiencies of the same nature, it is sufficient to preclude termination for poor performance. (MSPB R. tab 4h, at 4; see also MSPB Hrg. Tr. 136:17-20.) A "Fully Successful" rating indicates an "acceptable level of competence," and warrants normal advancement of pay grade. (MSPB R. tab 4w, at 4.) Ratings of "Exceeds Expectations" and "Outstanding" denote work of a "superior" or "exceptional" quality. (MSPB R. tab 4h, at 4.)
On January 1, 2007, the EPA put Plaintiff on a performance plan whose first critical element-"Program/Project Management"-required him to "ensur[e] that the information in the [Region III] Docket is accurate." (MSPB R. tab 4u, at 3.) In November 2007, after Plaintiff's performance respecting that critical element was deemed "Unacceptable," the Agency placed him on a "Performance Improvement Plan." (MSPB R. tab 4u, at 5.) The 2007 "PIP" required Plaintiff to "ensure that the information in the Docket was consistent with the information in CERLIS." (MSPB R. tab 4u, at 12.) The "Comprehensive Environmental Response, Compensation, and Liability Information System" is a database that, like the Docket, tracks hazardous waste facilities. Reviewing Plaintiff's work at the conclusion of his 2007 PIP, Plaintiff's supervisor, Kathleen Anderson, observed that when crosschecking the Docket against CERCLIS, [t]he most fundamental piece of information is the name of the site. However, you only made sporadic corrections to names of the sites in the spreadsheet. The same is true for addresses. Most alarming, however, are the "corrections" you did make. In almost all cases where you changed the zip code it was to a zip code for a city outside of the State altogether. For instance, many of the zip code changes for sites in Maryland were to zip codes for cities in Virginia and Pennsylvania and, in one case, California, even though no other changes in address were made. At one site in [Maryland], you changed not only the zip code but the entire address of a site that was entered correctly in both the spreadsheet and in the Docket. These types of inexplicable mistakes render your work on this assignment highly unreliable.
(MSPB R. tab 4u, at 12-13.) Plaintiff's remaining work received an equally poor evaluation. (MSPB R. tab 4u.) His rating thus remained "Unacceptable." (MSPB R. tab 4u, at 11-14.)
As set out more fully in my discussion of evidentiary sufficiency, over the next year, Plaintiff repeatedly failed adequately to perform his most basic job duties. In February 2008, the EPA put Plaintiff on a new performance plan, comprised of three critical elements. (MSPB R. tab 4h, at 1-12.) Critical Element #1 set out Plaintiff's primary duties as Docket Coordinator: "ensur[ing] that the appropriate facilities are listed on the Docket accurately and in a timely manner." (MSPB R. tab 4h, at 5.) Plaintiff's performance on Critical Element #2 ("Customer Service") and #3 ("Teamwork") was rated "Fully Successful"-an "acceptable level of competence." (MSPB R. tab 4h.) As to Critical Element #1, however, his performance was "Unacceptable." (MSPB R. tab 4h.) Accordingly, Anderson informed Plaintiff that she was placing him on a second 60-day PIP. (MSPB R. tab 4t.) At the PIP's conclusion Anderson again rated "Unacceptable" Plaintiff's performance of his primary duties. (MSPB R. tab 4g;) see also 5 C.F.R. § 432.103(b). Thus, on March 27, 2009, the EPA terminated Plaintiff. (MSPB R. tab 4b.)
Plaintiff appealed his termination to the Merit Systems Protection Board. (MSPB R. tab 1.) After a two-day hearing, Administrative Judge Kara L. Svendsen upheld the firing. (MSPB R. tab 43.) The Board affirmed the ALJ's decision, and Plaintiff brought the instant action. Lee v. E.P.A., 115 M.S.P.R. 533 (2010).
Plaintiff alleges that there is insufficient evidence in the administrative record to support his firing (Count I), that his removal was procedurally invalid (Count II), and that national origin discrimination impermissibly figured in his termination (Count IV). On October 11, 2012, Plaintiff dismissed Count III of the Complaint by stipulation. (Doc. No. 25.) ADMINISTRATIVE APPEAL
"Under 5 U.S.C. § 7703(c), judicial review of a termination decision by the MSPB is limited to review of the administrative record." Harold v. Barnhart, 450 F. Supp. 2d 544, 551 (E.D. Pa. 2006). I must affirm the agency's decision unless Plaintiff shows that it is
(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); see also Chambers v. Dep't of Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008); Clark v. U.S. Postal Serv., 989 F.2d 1164, 1167 (Fed. Cir. 1993).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is "more than a mere scintilla," but may be less than a preponderance of the evidence. Id.; see also Harold, 450 F. Supp. 2d at 551.
If an agency bases an "unacceptable" rating on an employee's failure to perform adequately with respect to one or more subelements, "the agency must present substantial evidence that the employee's performance warranted an unacceptable rating on the critical element as a whole." Adkins v. Dep't of Hous. & Urban Dev., 781 F.2d 891, 895 (Fed. Cir. 1986) (citing Shuman v. Dep't of Treasury, 23 M.S.P.R. 620, 628 (1984)). To meet this burden, the agency must "demonstrat[e] that the employee knew or should have known the significance of the subelement or subelements at issue." Id.
A.Evidentiary Sufficiency (Count I)
Plaintiff argues that because the administrative record does not include spreadsheets, computer screenshots, or other examples of his purported incompetence, the evidentiary basis of his termination is necessarily insufficient. (Doc. No. 24, at 18-20.) Yet, the record shows quite plainly that Plaintiff did not adequately maintain the Docket despite the EPA's repeated assignment and reassignment to him of this most basic duty.
"Anderson found [Plaintiff's] performance unsatisfactory based primarily on his failure to complete the first two [PIP] tasks." Lee, 115 M.S.P.R. at 552. She detailed Plaintiff's shortcomings in her five-page "PIP close-out memorandum." (MSPB R. tab 4g.) Her hearing ...