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Board for Correction Case No. 222-00

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Board for Correction Case No. 222-00

124.00 Commissioned Officer Effectiveness Report (COER)-Includes Performance Evaluation - Change evaluation rating

Board Members' Recommendation and Decision on Appeal of: xxxxxxxx

Case Number 222-00

I. Xxxxxx Request for Relief:

1. Remove her Commissioned Officer's Effectiveness Report (COER) for the year ending xxxx 1999 substituting for it a continuity COER indicating that the original was removed by order of the Secretary.

2. Recommend her restoration to the position of xxxx xxxx xxxx (XXX), xxxx or, in the alternative to a comparable 0- 7 billet.

3. Grant such other relief as xxx in the circumstances be just and proper.

Summary of Xxxxxx PHS Career

Xxxxxx career is described in her submission to the Medical Officer Special Pay Board (MOSPB). Copies of her resume and Officer Information Summary are included in the Case Record. She has been repeatedly decorated as her record will confirm. Notably, she received three decorations during the year covered by the disputed COER or as a result of her performance of duty during that period. She recently received the PHS Outstanding Unit Citation for exemplary performance of duty in connection with xxxxxxxxxxx, which assisted Xxxxxx at Xxxxxxxxxxx in xxx 1999. Her role in that operation occurred during the period covered by the disputed COER, thus impeaching xxxxxx (xxxxxx xxxxx) unfair evaluation of her performance. More recently, she has been nominated for an additional decoration, still to be determined, based on her work in xxxx xxx during the reporting period. Ironically, that decoration relates to her work on the xxxxx xxxxx xxxx, a point for which Xxxxxx severely criticized her. Because of her abrupt and retaliatory transfer, she has been required to obtain quarters in the xxxxxx xxxxx area; her family remains in xxxxxx, near xxxxxxx xxxxxx.

II. Overview by Xxxxxx:

1. From 1995 to 1999 she served as the xxx for xxxxx. Xxxxx became increasingly hostile to her for no valid reason, but in fact, because she insisted on adhering to government standards of conduct. The evidence of Xxxxxx hostility came in a variety of forms such as submission of an e-mail that contained highly prejudicial and untrue allegations which were placed in her file without notice (xxx has correctly removed that e-mail). The hostility reached a crescendo in her 1999 COER. She submitted a detailed rebuttal but it had no effect.

2. In Xxxxxx 1999, Xxxxx caused her to be transferred from her career-enhancing 0- 7 billet as the XXX to an 0-6 staff billet in the Office of the Surgeon General. There, she was responsible for matter related to the xxxxx xxx of the Public Health Service, and reported to xxxx xxxx xxxx xxxxx, the xxxxx xxxx xxxx. She was later placed on an eight month detail at the xxxx xxxx to Study that agency's health care data systems. The assignment is expected to end on or about xxxx 2001.

3. As a further result of the 1999 COER, she was refused special pays for 1999. The MOSPB recommended relief on xxx 2000. Its rationale was as follows:

"The decision is based on the judgement

that the overall job rating of "B" is

inconsistent with the majority of more

positive ratings."

The Director of the Division of Commissioned Personnel (DCP) concurred with the MOSPB on xxxxx 2000. She thereafter received the 1999 special pays (the special pay that should have been paid to her in xxxxx 1999 was paid on xxxxxx 2000). However, she was afforded an opportunity to execute a contract entitling her to special pays for the year 2000 only as the third year of a four-year contract.

4. She submitted a rebuttal to the COER. She did not grieve the COER because, as a senior officer, she felt submission of a grievance would have a corrosive and distraction effect on the already over-stressed personnel climate prevailing in the Xxxxxxx. She also was unaware until long after the abbreviated grievance period expired that the COER would have such far reaching adverse effects on her PHS career. For these reasons, and because Congress has wisely provided a lengthy period for seeking civilian review from the Board for Correction (Board), it would be unfair and inappropriate to hold that her right to such review was precluded because she failed to submit a grievance within the five day period prescribed by regulation. She has never submitted a grievance or applied for a correction of her record over the course of her xx years of active duty with the commissioned corps. The errors at issue occurred within the last three years. Accordingly, the case is timely in its entirety: 10 U.S.C. 1552 (b) (1994) and PHS general Administration Manual, Chapter 16-00-30 (c).

5. Xxxxxxx 1999 COER should be expunged because it is not a fair and objective evaluation of her performance of duty. Her submission to the MOSPB basically states her case. As she explained:

The 1999 COER should not be used as a reason

for cancelling or denying my special pays because

it does not satisfy the commissioned corps'

requirements for fairness, accuracy and objectivity.

Her submission provided details and specific reasons for this conclusion. Those reasons apply with equal force to removal of her 1999 COER: (a) Xxxxxx was biased against her; (b) Xxxxxx, as a political appointee, was unfamiliar with PHS COER practices; (d) the COER itself was internally inconsistent; (e) the COER was inconsistent with her other COERs and (f) the COER was not a fair and accurate depiction of her outstanding performance of duty during the reporting period.

6. DCP's effort to obtain from Xxxxxx COERs a basis for suggesting that it was she who created an adversarial relationship with Xxxxxx is outrageous. DCP has produced not a syllable form Xxxxxx to refute Xxxxxx evidence. Xxxxxx has set forth the facts and circumstances of there deteriorating relationship with Xxxxxx and has submitted evidence from disinterested third parties. The Board's attention is invited to the details of these matters as set forth in her MOSPB submission and in her rebuttal to the COER. It is respectfully suggested that due deference be afforded to the MOSPB's determination regarding the inconsistency between the 1999 COER and her other COERs. That finding alone casts grave doubt on the fairness and objectivity of the 1999 COER and should make this Board's task materially easier.

7. DCP has offered to remove the 1999 COER from Xxxxx record. She is unwilling to waive her right to review by the Board in exchange for relief that does not make her whole (as the record-correction statute requires). The Board's Function extends to both the correction of an error and removal of an injustice. It contemplates "make-whole" relief. The PHS Board, like the military boards after which it was modeled, "have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant through and fitting relief."

8. In a further effort to explain the COER (a document which DCP obviously knows is vulnerable since it has twice offered to remove it if Xxxxx abandons her appeal), DCP speculates that the fact that she was on sick leave for part of the rating period "could have accounted for the decline in [her] performance of her duties as reflected on the 1999 COER." But neither the COER nor Xxxxxx attachment to it ( a copy of which is in the Case Record asserts that sick leave, Xxxxxx, impacted on her work. DCP should not be permitted to put words in Xxxxxx mouth. Ironically, its effort to do so runs afoul of DCP's own Manual Circular on preparation of COERs which provides:

Rating periods xxx include extended periods of sick

leave or intermittent episodes of sick leave. The officer

should be evaluated On his/her performance when present. (Emphasis added).

9. COERs, like fitness reports in the other uniformed services, play a central role in the promotion process. "COERs are of primary concern when an officer is considered for promotion." They are the most important documents in an officer's record.

Because COERs can have pervasive effects on an officer's career, the Board should not confine itself to the basic relief of expunging the 1999 COER and all related correspondence, but should also ensure that the COER's sequella have been dealt with. The Board should ensure that her eligibility for special pays is unaffected by the 1999 COER. She will be permitted to complete her current contract.

10. The Board should grant relief with respect to restoring her position as XXX, Xxxxxxx. As a high-performing 0-6 in an 0- 7 billet, Xxxxxx had every reason to consider herself viable for promotion to flag grade. Because the Board has a duty to fashion make-whole relief under the remedial correction-board statute, it must address this aspect of her case along with merely removing the offending COER and setting matters right with respect to special pays. To the extent that one of the forms Xxxxxx retaliation took was an arranged transfer form a career-enhancing flag billet, the Board should therefore also recommend to DCP and the Surgeon General restoring her to her position as the XXX, Xxxxxxx or, in the alternative, assigning her to a comparable 0- 7 billet.

11. Xxxxxx should not have to compete for a position form which she was improperly ousted and in which she performed with distinction. She has a right to be restored to her position as the XXX as part of the make-whole relief contemplated by the record correction statute. We note that DCP has taken no issue with her sworn statement of the facts and circumstances, and has failed to submit a statement in rebuttal from Xxxxxx. The fact that Xxxxxx "has left the Department to pursue other endeavors" is irrelevant except in the sense that one would have hoped DCP would no longer feel any political obligation to seek to uphold her actions.

12. The facts surrounding her "now you don't" reassignment to the and how it was described to Xxxxx are in the record. Obviously, she has never believed that her assignment to the involved life tenure. This is not the issue. Rather, the issue is that, notwithstanding the fact that DCP's own records show it as a permanent change of station and the fact that it was so described to her, it turned out to be a mere hold pattern that would go up in smoke the moment some as-yet unidentified official decided that the funding from the Xxxxxxx should be "withdrawn." Just as DCP has failed to submit a statement from Xxxxxx, so too, it has failed to submit anything from the individuals who were involved in this disturbing aspect of the case. If funding for Xxxxxx allegedly permanent position in the has indeed been "withdrawn," the simplest remedy is to restore her to her position.

13. DCP's claim that the Board cannot keep a vacancy open as interim relief is mistaken because the Board exercises the Secretary's authority and the Secretary can surely keep a vacancy open. In any event, since the Board can (and should) direct the make-whole relief of restoring xxxxxx to her position as XXX, if the position has been filled by the time the Board acts, DCP will have to find another position for any person who xxx be appointed to the position. DCP and the Department will have been fully and explicitly on notice of the prospect that the department might have to restore the status quo ant, and therefore cannot be heard to claim surprise.

14. Pertinent materials regarding Xxxxxx appeal are included in the Case Record. Because of the serious and disturbing nature of Xxxxxxx conduct and pattern of retaliation, it is believe this xxx be the rare case in which the Board should conduct an evidentiary hearing. She believes her record documents a history of events and actions which support granting the relief requested.

III. Response by DCP

1. Xxxxxx seeks removal of her 1999 COER from her Official Personnel File. This request is properly before the Board as she has exhausted her administrative remedies. However, she failed to provide sufficient relevant evidence of a probable material error or injustice in the record with regard to this COER.

2. The record documents a deteriorating relationship between Xxxxxx and her supervisor as noted in the rebuttals she provided on her 1997 and 1998 COERs, which were above average to outstanding. The tone and content of the three years of rebuttals document that she objected to being supervised by Xxxxxx. The 1999 COER reflected three substandard scores in the areas of punctuality, responsiveness to supervision and overall performance. The overall Performance Rating is not intended to be an average of all the items in the COER, but should reflect the actual effectiveness in the job the officer is doing. As such, it is not inconsistent to have a "B" score on overall job performance and a satisfactory score in other areas.

3. DCP's offer to remove the COER as full settlement in this case was intended to bring speedy resolution to this matter. The offer in no way reflected DCP's assessment of the merits of Xxxxxx claims regarding the accuracy of fairness of the COER. DCP maintains that no error of injustice exists in her record as it currently exists.

4. Xxxxxx special pay request is now moot as DCP has executed the contract and made the required payment for 1999.

5. Xxxxxx seeks reinstatement in the position. As a commissioned officer, she has no vested interest in anyone position or assignment, but is commissioned to serve the needs of the Service as stated in her Affidavit of Appointment. Top level management in the Office of the Secretary determined that it was in the best interest of the Service for her to be reassigned. Therefore, she executed a permanent change of duty station when she was reassigned to the office of the Surgeon General. She is free to seek reassignment to any position in the Department for which she qualifies.

6. The Board has broad powers to correct an error or injustice but is not authorized to "fashion remedies" as suggested by Xxxxxx.

IV. Board Action on Xxxxxxs Appeal:

Date of Board Meetings: xxxx 2001 and xxxx 2001

Board Staff: Members of the Board:

Wayne C. Richey, Jr. Joseph H. Autry, III.,

Executive Director M.D. Chairperson of the

Board for Correction of Board and Acting

PHS Commissioned Corps Administrator for SAMHSA

Records

Thomas E. White, Ph.D.

Executive Secretary

Board for Correction of

PHS Commissioned Corps

Records

Findings, Conclusions, Recommendation and Correction to the Record

Findings

1. It was clear that Xxxxxx was a highly qualified and decorated Public Health Officer. It appeared that in the areas in which she chose to concentrated she brought an exceptional degree of talent to her job.

2. There was clearly friction between Xxxxx and Xxxxx. She had a direct reporting responsibility to Xxxxxx as well as a responsibility to receive professional guidance from the xxxxxxxx xxxxxx xxxx, xxxxx xx xxxxxxxxxx xxx xx. This split had Xxxxxx putting emphasis on Xxxxxx direct reporting responsibility to her with Xxxxxx putting emphasis on her responsibility to the office of Public Health and Science.

3. Xxxxxx, as a political appointee, was unfamiliar with PHS COER practices. Although she did learn the majority of them, there was evidence that she did not know them well, as evidenced by her submitting comments for the record without discussing them with Xxxxxx.

4. Xxxxxx documentation did not substantiate her claim that her 1999 COER had been unfair. Her 1999 COER reflected the praise worthy aspects of her programmatic accomplishment as well as difficulties in the supervisory relationship with Xxxxxx.

5. On Xxx 2001, The xxxxxx, HHS, changed the organizational relationships in the xxxxxx to require XXX and their staffs and budgets to report to and be under the line authority of the ASH (they had previously reported to the xxxxxx xxxxxx xxxx through the xxxxx xxxx).

Conclusion

1. During the period 1997 through 1999, Xxxxxx had a deteriorating working and personal relationship with her supervisor Xxxxxx. Nevertheless, it must be remembered that she was a member of a uniformed service of the United States and as such was charged with carrying out the direction given her by her supervisor in a manner in which the senior official, in this case Xxxxxx, requested. This held true for objectives, plans, activities and approaches to assignments.

It was surprising that someone as talented as Xxxxxx in dealing with hands on/front line issues was not able to successfully negotiate a good working relationship with her superior. In this regard, she failed. Her removal from the XXX position was influenced by not only her 1999 COER which reflected a deterioration in carrying out her job, but also by a conflict with her supervisor. It was noted that throughout the period her ratings were concurred in by higher level reviewing officials, even her 1999 ratings.

2. The record lacked sufficient reason or documentation to support recommending Xxxxxx for reinstatement in her position. As a commissioned officer, she was subject to reassignment as the Service saw fit. Her reassignment was legal and was seen as in the best interest of the service.

3. The subsequent change in organizational relationships requiring XXXs and their staffs and budgets to report to and be under the line authority did not change the issues affecting Xxxxx. The change was after the fact. While this change xxx bear on the future evaluations of XXX, it has no relevance in the case Xxxxxx. At the time of her appointment and service, her supervisor was the xxxxx xxxxx and as such the individual responsible for her ratings.

Recommendation and Correction to the Record

Therefore:

The Board members recommended that Xxxxx appeal be denied. This requires no correction to her record.

We certify that the Board members recommendation reflect their views and actions after considering Xxxxxx appeal and that they have concurred in this matter.

We certify, further, that the case Record, shown as an Attachment, contains all documentation received on Xxxxxx and in addition to applicable statutes, regulations and policies, it was considered by Board members.

Finally, certify that a quorum was present on xxxx 2001 and xxxx 2001 when Xxxxxx appeal was considered by Board members.

If you approve, please sign below.

Joseph H. Autry, III., M.D.

Chairperson of the Board and

Acting Administrator for SAMHSA

Reviewed and Approved:

I hereby ( ) approve ( ) disapprove the Board members' recommendation on Xxxxxx appeal received and considered in accordance with the authority of section 221a (aXI2) of the Public Health Service Act (P. L. 96- 76 as amended) and 42 U.S.C. 213a (aXI2).

Curtis L. Coy

Director

Program Support Center

Attachment: Case Record

Board Member's Recommendation on Appeal of: xxxxxxxx,

Case Number 222-00-MINORITY REPORT

I have reviewed the Board members' Findings, Conclusions, and Recommendation on the appeal of xxxxxxxx, Case Number 222-00 considered at its meetings on xxxx, and xxx 2001.

I do not concur with the recommendation to retain her 1999 COER in her record and for this reason, submit a minority report as follows:

Findings:

1. There was supporting evidence for the claim that the 1999 COER was internally inconsistent. A number of topics were rated highly: quantity of work, quality of work; initiative, creativity and judgement; analyzing problems; supervisory skills; working with others; communication skills; professional skills in current activity; response to crises; commitment to goals; and managerial responsibilities.

The two marginal scores with the accompanying notes not only reflect on procedural complaints by the supervisor, but on the effectiveness of managerial performance.

a. The COER says that Xxxxxx was behind schedule on some work, including a work plan due xxxxx 1998. This was apparently late, but xxxxxx claims there were routine and periodic oral briefings. Was Xxxxxx asked to be doing different work than she was actually doing? Does that change substantially from year to year? This was not indicated. It was also a year during which Xxxxxx received performance awards. An effective manager will generally work with a talented and committed professional on this type of procedural matter to iron out a problem collaboratively long before it becomes and issue for the end-of-year evaluation. In the case of unsatisfactory performance of specific duties, the manager can call in timely training and counseling resources. If that fails, the manager would have a convincing, documented complaint.

b. Secondly, the COER faults Xxxxxx for being unresponsive to her supervisor, the xxxxxx xxxxx. The key instance of unresponsiveness is the written work plan. It is natural that professionals in government service have to accept political leadership and through a mutual process of adjustment for everyone's long run interest, work to reach a workable cooperation. This is a two-way street and on should expect the supervisor also to be responsive and take a lead to build good relationships and get the most out of strong staff. Xxxxxx raises some questions about the areas in which the supervisor wanted more responsiveness these xxx reflect questionable judgement by the supervisor to dictated the process of reviewing applications and awarding public funds.

The overall marginal score appears to overly weight the about two items which leads to question of the effectiveness of herself, even if one might question Xxxxxx handling of a difficult relationship. A supervisor has many more tools at her communication and cooperation.

2. There is some support for the claim that the 1999 COER is not a fair and accurate depiction of performance. The Xxxxxx, did not seem to have sufficient justification for the overall marginal evaluation, noted above. The notes to the COER are not all objective or informative, such as the statement that Xxxxxx works a little harder on causes she admires. There is no documentation that Xxxxxx was given guidance on concrete steps for improved cooperation. Completely uncooperative and even destructive behavior by a person of Xxxxxx talent and accomplishments are so surprising that they should be documented objectively in detail, preferably as soon as they occur, with steps asked for improvement.

3. The ACTION memorandum on "Restructuring of Reporting Lines for Regional Health Administrators" (XXX) signed by Secretary Thompson on Xxx 2001 restores the reporting line between xxx and the Office of Public Health and Science. In 1995, the supervision of the xxx and associated program responsibilities had been transferred to a political appointee. The 1995 policy has now been found to be inconsistent with other HHS regional program structures and jeopardizing program performance, especially for disaster responses.

It is likely that the adverse 1999 COER for Xxxxxx and her subsequent transfer would not have occurred under the new policy. The items of marginal ratings and criticism by the COER hinged on Xxxxxxx responsiveness to direction. Under the new policy, and in view of Xxxxxx strong record, it is more likely that Xxxxxx would have achieved a cooperative and productive relationship in the Xxxxxxx.

Conclusion:

There is support for the claims of Xxxxxx about the inconsistent 1999 COER. The appearance of unfairness is more subjective, but supported. The marginal ratings would probably not have occurred under the new policies that are consistent with other xxx regional program structures. The questionable 1999 evaluation was probably a significant factor for the decline of Xxxxxx career prospects in the PHS, or perhaps the COER was just a flimsy cover for the actions that the decided to take to remove Xxxxxx form the Xxxxxxx.

Recommendation:

Remove the 1999 COER. Compensate Xxxxxx for lost Medical Officer compensation, if attributable to the COER. Allow her to compete for any available positions at grade level and compensation of her former rank and office.

Reviewed and Approved:

I hereby ( ) approve ( x) disapprove the recommendation of the Minority report on Xxxxxx appeal received and considered in accordance with the authority of Section 221a (a) (12) of the Public Health Service Act (P.L. 96-76 as amended) and 42 U.S.C. 213a (a) (12) and empower the Director, divisions of Commissioned Personnel, Human Resources Service, Program Support center, to implement this decision.

Curtis L. Coy

Director

Program Support Center


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.