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Board for Correction Case No. 177-96

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Board for Correction Case No. 177-96

109.00 Appointment as Commissioned Officer - Recall to active duty

Recommendation of the Board for Correction on Appeal of: Xxxxxxx, Case No.177-96

Xx xxxx Appeal for Relief:

Xxxxxx appealed to the Board asking it to:

  1. Change his 1990 and 1991 Commissioned Officers Effectiveness Reports (COER) and other documents so they represent satisfactory performance.
  2. Reinstate him into the commissioned corps.
  3. Grant him service credit for time spent since separation from the corps.
  4. Pay him back pay and benefits.
  5. Promote him to a GM-14 Supervisory Chemist position.

Summary of Xxxxxx Argument and Documentation:

  1. Xxxxxx argued that xxxxxxx and xxxxxxxxxxxxxxxxx (referred to as management by Xxxxxx) learned that he had filed an informal Equal Employment Opportunity (EEO) complaint on Xxx, 1990 against Xxxxxx and retaliated against him for that (he did not go forward with the informal complaint) and for subsequently filing a formal complaint of discrimination. He contended that both Xxxxxx and Xxxxxx cooperated in the reprisal against him; Xxxxxx as supervisor and Rating Official and Xxxxxx as Reviewing Official. Filing an EEO complaint was a protected activity under the anti-discrimination statutes and he should not have been retaliated against for having done so.
  2. Xxxxx argued further that as early as Xxxxxxx, 1990, he spoke with xxxxxx, xxxxxx xxxxx, XXX EEO, about his complaint and she said she would discuss it with xx xxxxxxxxxx, his third-line supervisor and Xxxxxx supervisor. Soon thereafter Xxxxxx came to his office and spoke with him about the issue. He alleged that Xxxxxx learned about the EEO complaint during a meeting on Xxxx, 1990 when he [Xxxxxx] accused Xxxxxx of being "prejudiced" and "unfair." Both Xxxxxx and Xxxxxx knew about the EEO complaint before completing his 1990 COER.
  3. Xx xxxx argued that he first began receiving written criticism of his work from Xxxxxx on Xxxx, 1990 after Xxxxxx, xxxxx xxxxxx, xxxxxxxxx xxxxxx, discussed this with him on Xxxx, 1990 and Xxxx, 1990. All of these events occurred a little more than a month after he filed an EEO complaint on Xxx, 1990. Another written criticism was dated Xxxxxxx, 1990 in connection with completion of his 1990 COER. Xxxxxx contended that Xx xxxx evaluation of his work began to deteriorate on Xxxxxxx, 1990 (before he filed his EEO complaint). He believed that his evaluation should have considered that during part of the evaluation period (from Xxxxx 1989 through Xx xxx 1990) he had been away attending the Executive Potential Program. Five months earlier Xxxxxx had given him an Exceptional rating. Xxxxxx argued that he began receiving poor COER ratings starting in 1990 (Marginal) and in 1991 (Competent) after a rating of Exceptional in 1989. Both Xxxxxx and Xxxxxx signed his 1990 and 1991 COERS. Xxxxxx signed in 1989; xxxxx xxxxxx signed as the Reviewing Official.
  4. Xxxxxx signed Xxxxxx 1990 COER on Xxxxxxx, 1990. Xxxxxx contended that several weeks later on Xxxxxx, 1990, Xxxxxx told him that he should not have filed an EEO complaint as it would hinder his career. He believed that Xx xxxx remarks lent credence to his conclusion that his 1990 COER had been lowered because he filed an EEO complaint. He argued that the ratings he received in 1990 and 1991 after filing the complaint also contradicted the strong recommendation Xxxxxx gave him on Xxxxx, 1988, when he recommended him for the executive development program. The 1990 and 1991 ratings led to recommendations that he not be promoted and subsequent dismissal from the commissioned corps.
  5. Xxxxxx argued that the difference between his ratings in 1990 and 1989 had not been due to a difference in productivity. He stated that in 1990 he had the highest total number of reviews for supplemental applications and annual reports. This was not true in 1989, yet he received a higher COER in 1989. His rating in 1989 had been influenced not only by his participation in the executive development program, but also by his performance as a xxxxxx xxxxxxx prior to entering the program.
  6. Xxxxxx argued that the quantity of work he performed in 1991 had been well above average. He stated further that in both 1990 and 1991 he successfully completed all submissions within 180 days which had been the production target placed on xxxxxxxx in the division. He also stated that during 1990 and 1991 he processed 11 xxxx applications through to approval (contrary to Xxxxx claim that none had been processed) .

    He contended that his production could have been higher had Xx xxxx not transferred a number of nearly completed XXXXs to another xxxxxxx while assigning him original applications which could take one year to process. He thought his 1990 accomplishments had been significant considering that the evaluation period covered part of the time while in the executive development program.
  7. Xxxxxx argued further that his low COERs could not have been due to his lack of commitment to his job or to his profession or to his lack of communication skills. He stated that he was a hard worker, who during the period while in the executive development program, handled both his training responsibilities and duties for Xxxxxx (supervisory and other assistance as well as assisting other xxxxxxxx in the division).

    He stated that he had been commended by his co­workers, other supervisors and persons in authority for his efforts and contributions. With respect to his communication skills, he argued that in 1989, he received a rating of D-"gets message across even when material is complex" compared with a 1990 rating of A-"often does not get the desired response even to routine material because the message is not understood." He stated that he was not aware of any reason why his ability to communicate should have declined that drastically in one year.
  8. Xxxxxx stated that the 1990 Promotion Board recommended him for promotion, but that he did not rank high enough to be selected. The 1991 Promotion Board did not recommend him for promotion. However, the Board members were not unanimous in their decision not to recommend him. Three members were against promotion; two members were in favor. The 1992 Promotion Board did not recommend him for promotion. The Board members were unanimous in this recommendation.

    Xxxxxx argued-that his failure to be promoted resulted from the negative effects of the low 1990 and 1991 COERS he received after filing an EEO complaint. For this reason, he filed a formal complaint on xxxxxxx, 1992. Subsequent to filing this complaint, Xxxxx, an EEO/XXX investigator, wrote to his supervisor xxxx on Xxxxx, 1992: "it appears that Xxxxxx has a strong basis for his complaint." This statement confirmed Xxxxxx view of the facts in his case.

Summary of the Division of Commissioned Personnel's

Argument and Documentation:

  1. In accordance with 42 U.S.C. 211 (g) and the Commissioned Corps Personnel Manual (CCPM), Subchapter 43.7, INSTRUCTION 1, Xxxxxx, a Regular Corps officer, was involuntarily retired from the corps on xxxxxxx, 1992. He was retired after twice failing to be recommended for promotion to the Permanent Grade O-5. His full Official Personnel File (OPF) was reviewed in making this determination.

    The law required that Regular Corps Permanent Full Grade O-4 officers, who twice failed to be recommended for permanent promotion to the senior grade O-5, be retired on a date specified by the Surgeon General. Xxxxxx was retired in a manner consistent with the law.

    Xxxxxx failed to provide material evidence of an error or injustice in his record. Therefore, the Board should conclude that there is no basis to rescind his retirement; reinstate him on active duty; grant him active duty credit for time spent in retirement; grant him active duty pay and benefits for time spent in retirement or to promote him. His request should be denied in its entirety.
  2. Both the 1991 and 1992 Scientist Promotion Boards (SPB) based their recommendations not to promote on a review of Xx xxxx full OPF. His OPF documents his inconsistent performance and numerous transfers as a result of performance issues. He received substandard ratings in 1985 and 1990; an Exceptional rating in 1989; Well Above Average ratings in 1983 and 1988; and Competent ratings in 198x and 1991.

    The SPB placed the greatest weight on his most recent COERs (1989 COER and 1990 COER by the 1991 SPB, and his 1990 COER and 1991 COER by the 1992 SPB). The SPB also considered XXX's recommendation that he not be promoted. A divided 1991 SPB and a unanimous 1992 SPB recommended against promotion to the Permanent Grade O-5.

    The evidence in Xxxxxx OPF supported the SPB's recommendations against promotion to the Permanent Grade O-5. He failed to provide material evidence of an error or injustice in the conduct of the SPB or in the material they reviewed. Therefore, the Board should conclude that there is no basis to overturn SPB's recommendations.
  3. Xxxxxx OPF was not competitive with his peers' even before inclusion of his 1990 and 1991 COERs. The SPB reviewed his qualifications in 1990 for promotion to the Temporary Grade O-6. He was ranked too low to be promoted. The SPB members observed his lack of publications, COER ratings over the past four years which had been average or below the Agency's average, and his need to improve his writing and speaking skills. His communication skills had been identified as less than desirable as early as xxxx, 1977 upon processing his application for appointment to the commissioned corps. The Board members also noted his substandard COER in 1985.
  4. The record lacks evidence that Xxxxxx 1990 and 1991 COERs were tainted by factors that: (a) had no business in the rating process; (b) was a clear violation of a specific statute, regulation or policy; or (c) was a misstatement of a hard fact (Muse v. United States, 21. Cl.Ct. 592, 602, 1990.)

    Specifically, review of the record found:

    No Discrimination. A comprehensive investigation of Xxxxxx claims revealed no evidence of discrimination on the basis of race (xxx) or national origin (xxxx) . An examination of his supervisor's evaluations of other similarly situated employees showed that Xxxxxx rated persons outside his protected class for race and national origin equally poorly and gave an Excellent evaluation to an xxxxxx employee. Xxxxxx did not dispute this finding.

    No Retaliation. The overwhelming evidence in the record supports the Surgeon General's finding that Xxxxxx failed to make a prima facie case of retaliation. He failed to show that the alleged discriminating official knew of his EEO activity prior to the adverse personnel actions of which he complained.

    Specifically:

    Xxxxxx failed to provide evidence that Xx xxxx or Xx xxxx knew of his EEO activity prior to issuing his 1990 COER on Xxxx, 1990.

    The record showed that on Xx xxx xx, xxx xx and xxx x 1990, Xx xxxx supervisors had been critical of his work.

    Xxxxxx claimed to have spoken with EEO counselor xxxxxx on xxxxxx 1990. This was contradicted by evidence in the record which showed that he filed his complaint the week of Xxx, 1990 and was first interviewed by a counselor on Xxxx, 1990.

    During his first interview with the EEO counselor, Xxxxxx stated that the most recent criticism by his supervisor had been on Xxx, 1990. He withdrew his informal complaint less than two months later.

    The record lacked evidence that any EEO counselor spoke with either Xx xxxx or Xxxxxx prior to Xx xxxx 1992 complaint. xxxxxx provided sworn testimony that she spoke with a management official sometime after the Xxxxxxxx month. Xxxxxxxx month was celebrated in Xx. The record contained no documented evidence of her contact with any management official regarding Xxxxxx.

    xxxxxx did not recall which XXX Management official she spoke with or when. Xxxxxx did not recall having any conversation with xx xxx regarding Xxxxxx. Therefore, the Board should conclude that the record lacked evidence that Xxxxx ever contacted Xxxxxx.

    Both Xxxxxx and Xx xxxx provided sworn statements that prior to Xxxxx xxx, 1990, they were unaware of Xxxxxx informal complaint. Xxxxxx explicitly stated that neither Xx xxx nor any other EEO counselor had contacted him about Xx xxxx complaint. Xx xxxx stated he had no record or recollection of speaking with an EEO counselor regarding Xx xxxx. Therefore, the Board should conclude that the record lacked evidence that either Xx xxxx or Xx xxxx were contacted by Xx xxx or any other EEO counselor regarding Xx xxxx 1990 EEO complaint.

    Xxxxxx submitted his 1990 COER to Xx xxxx on Xx xxx x, 1990. The record indicated that he refused to sign the COER. The COER was then signed by the Reviewing Official, Xxxxxx, on Xxxxxx, 1990.

    Xx xxxx informed Xx xxxx of his EEO complaint when he met with Xx xxxx on Xx xxx x, 1990 in an effort to have his COER ratings changed. When Xx xxxx told Xx xxxx that he was unaware of his complaint, Xx xxxx did not contest Xx xxxx statement. The Board should conclude that neither the rater, Xxxxxx; nor the reviewer, xxxxxx; knew of Xx xxxx complaint when they completed his COER in Xxxxx 1990.

    Xx xxxx failed to show a causal connection between his EEO complaint and his 1990 and 1991 COER ratings. Because he failed to show that Xx xxxx and Xxxxxx knew of his EEO complaint before completing his 1990 COER, he could not show that this knowledge caused his ratings.

    Xxxxxx gave nondiscriminatory reasons for his rating of Xxxxxx in 1990 and 1991:

    He had admonished Xxxxxx about his poor performance and unresponsiveness to supervision.

    Xxxxxx produced a high volume of poor quality work that required repeated editing and revisions. He also required closer supervision than other xxxxxxxx.

    Xxxxxx documented low productivity with xxx in 1990 and 1991.
  5. The record was void of evidence that Xx xxxx's COER's were influenced by factors other than his performance as a senior level commissioned officer. In fact, the record showed that Xx xxxx and Xxxxxx were friends having a common experience of both being xxxx xxxxxx. They went to lunch together and went for walks together. The record also showed that Xxxxxx nurtured (promoted/fostered) Xxxxxx career by highly recommending him for the executive development program and by affording him the opportunity to act on his behalf during his absence. When Xxxxxx noticed a deterioration in Xx xxxx performance, he honored his request for oral admonitions. It was only after the oral admonitions failed that Xx xxxx resorted to written performance summaries hoping that Xx xxxx would correct his deficiencies.

    xx xxxx failed to overcome the strong presumption that his supervisors discharged their duties correctly, lawfully and in good faith (Guy v United States, 608F2d. 86x, 8x0, 19x9) in completing his COERs. Courts have ruled that a prior or subsequent record of good performance cannot negate the evaluation of an officer's performance for a specific period (Greig v United States, 640 F2d 1261, 1267, [1981]).

    The record documented nondiscriminatory and nonretaliatory reasons for the differences between Xx xxxx 1989 and 1990 COERs. In a 1991 career counseling session Xxxxxx informed his staffing officer that he could not do lab chemistry work, but preferred management work. The Board should conclude that Xxxxxx own assessment about his ability to perform as a lab xxxxxxx was reflected in his 1990 and 1991 COERs. The Board also should conclude that because of a lack of material evidence of error or injustice in Xxxxxx record, there was no basis to change his 1990 and 1991 COERs and other documents.
  6. Xxxxxx failed to provide evidence that even if his 1990 and 1991 COERs were removed from his record, that any SPB would have recommended him for promotion to the Permanent Grade 0-5 or promotion to the Temporary Grade 0-6. The record clearly showed that Xxxxxx was unable or unwilling to perform satisfactorily in his last assignment. Despite numerous attempts to obtain a reassignment for him, none of which were documented by DCP, he was not selected for another position. Xxxxxx said in his statement accompanying his 1992 EEO complaint that he applied for a hundred positions. Still he was not selected. Xxxxxx failed to provide evidence that he could have obtained another position in which he could have functioned competently as a senior level scientist.
  7. Xxxxxx did not remedy the deficiencies in his OPF noted by the xxxx 1990 SPB. These deficiencies were noted even before his Xxxxx 1990 COER was placed in his record. One of the major deficiencies that was well documented throughout his OPF was his poor oral and written communication skills. Xx xxxx attorney noted that: "As a xxxxx xxx xx xxxx who has lived in the United States for many years, Xxxxxx is at the point where xxxxxxxxxx neither deteriorates nor improves all that much." Based on his attorney's assertions, the Board should conclude that Xxxxxx did not and could not have been able to remedy his deficiencies causing him not to have been able to function competently as a senior level commissioned officer.

Board Action on Xxxxxx Appeal:

Date of Board Meeting: Xx xxx 199x

Board Staff:

Norman E. Prince, Jr.
Staff Director
Program Support Center Executive Director Board for Correction of PHS Commissioned Corps Records

Thomas E. White, Ph. D.
Human Resources Service Executive Secretary Board for Correction of PHS Commissioned Corps Records

Members of the Board:

Richard Asofsky, M. D.
Chairperson of the Board and Assistant Director for Special Emphasis Programs Division of Intramural Research, NIAID/NIH

Findings and Conclusion:

Facts:

  1. The 1990 Promotion Board recommended Xxxxxx for promotion to the Temporary Grade 0-6, but ranked him too low to be selected. Both the 1991 and 1992 Promotion Boards recommended that Xx xxxx not be promoted to the Permanent Grade 0-5. FDA, the agency where he worked, also recommended that he not be promoted to the Permanent Grade 0-5.
  2. Xx xxxx was retired in accordance with the provisions of 42 U.S.C. 211 (g) and CCPM, Subchapter 43.x, INSTRUCTION 1, requiring the retirement of a Regular Corps officer who twice failed to be recommended for promotion to the Permanent Grade 0-5.
  3. Xxxxxx decision to enroll in the executive development program was a critical factor shaping his appeal. The decision led to a strong recommendation by Xxxxxx. It helped form the basis for a change in career goals from being a xxxxxxx to becoming a part of management. This may have affected his performance and COER evaluations. Completion of the executive development program led to his decision to apply for a supervisory position for which he was not selected. This caused him to file an EEO complaint.
  4. The record was in dispute as to what Xx xxxx and Xx xxxx knew about Xxxxxx EEO complaint, when they knew it, and how it xx have affected the COER evaluations he received. Xx xxxx believed that the recommendations of the 1991 and 1992 Promotion Boards were based on the low COER ratings he received in 1990 and 1991, after filing a complaint. He also believed that ,both Xx xxxx and Xx xxxx knew about the complaint before completing his 1990 COER. On the other hand, DCP believed that the sworn statements by Xx xxxx and Xx xxxx attested to the fact that they knew nothing about the complaint before completing his 1990 COER, and that it was not a consideration in rating Xx xxxx. DCP contended that Xx xxxx first learned about the complaint on Xx xxx x, 1990 after Xx xxxx 1990 COER had been completed, and that he learned of it during a meeting with Xxxxxx.

    The Board members were concerned about Xx xxxx COER evaluations and their possible effects on the decision not to promote him or to select him for a supervisory position. They compared the evaluations he received after receiving a Well Above Average evaluation to determine if a pattern existed in his evaluations:

    1983-"Well Above Average"
    1984-"Competent"
    1985-"Marginal"
    1986- No record
    1987-"Competent" 1987-"Competent"
    1988-"Well Above Average"
    1989-"Exceptional"
    1990-"Marginal"
    1991-"Competent" 1992-"Competent"

    Except for the Exceptional evaluation Xxxxxx received in 1989, his evaluations after 1988 were consistent with his earlier evaluations after 1983 when the EEO issue was not a consideration.

Conclusion:

The Board members concluded that Xxxxx did not provide "clear and convincing evidence" that he had been unjustly denied a promotion and selection for a supervisory position, and that this resulted in an error or an injustice.

Recommendation and Correction to the Record:

Accordingly, the Board members recommend that Xx xxxx appeal be denied. This recommendation does not require a correction to his record.

We certify that the above recommendation reflects the views and actions taken by the Board members on Xxxxx appeal and that they have concurred in the recommendation.

We certify, further, that the Case Record, contains all of the information received on Xxxxx appeal; and in addition to applicable statutes, regulations and policies, it was considered by the Board members in arriving at this recommendation.

Finally, we certify that a quorum of Board members was present on Xx xxx xx, 1997 when Xxxxxx appeal was considered.

Reviewed and Approved:

I hereby (l) approve ( ) disapprove the recommendation of the Board members on the appeal of Xx xxxx received and considered in accordance with the authority of Section 221a(a) (12) of the Public Health Service Act (P.L. 96-x6 as amended) , and 42 U.S.C. 212a(a) (12), extending to the commissioned corps the provisions of 10 U.S.C. 1552. This recommendation does not require a correction to his record.

Lynnda M. Regan
Director
Program Support Center

Attachment 1: Case Record


Anyone wishing to obtain an un-redacted copy of any of the decisions should submit a request for the un-redacted decision under the federal Freedom of Information Act (FOIA). Such requests should be directed to the PHS FOIA Office, Parklawn Building, Room 17 A-46, 5600 Fishers Lane, Rockville, MD 20857; telephone 301-443-5252; fax 301-443-0925.