Obaid Beg v. Department of Health and Human Services
Background
- Appellant Obaid Beg, a GS-13 Chemist at FDA/CBER, was placed on a 60‑day Performance Improvement Plan (PIP) on July 29, 2011 for deficiencies in Administrative Requirements, Technical Competence, and Customer Service.
- After the PIP, on January 11, 2012 the agency proposed removal for unacceptable performance; Beg submitted written responses and the agency removed him effective April 13, 2012.
- The administrative judge found the agency’s performance standards valid, communicated, and that Beg was given a reasonable opportunity to improve.
- The judge concluded the agency proved Beg’s unacceptable performance in the three critical elements by substantial evidence and sustained the removal.
- Beg alleged multiple procedural defects (lack of OPM approval challenge, inadequate time/access to emails, denial of oral response), asserted the agency had a pre‑decided plan, and raised discrimination (race, national origin, sex) and retaliation for EEO activity as affirmative defenses.
- The Board denied review, agreeing the AJ did not err: OPM approval was not specifically challenged; ex parte emails did not show a preemptive plan; Beg had adequate opportunity to respond; and discrimination/retaliation claims were unsupported.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of performance system / OPM approval | Beg contends the system/plan was flawed and implicitly challenges approval | Agency presumed OPM‑approved; Beg did not specifically challenge approval | Board presumed OPM approval absent a specific challenge and found standards valid |
| Sufficiency of PIP and opportunity to improve | Beg says PIP process was pretextual and he lacked a fair chance to improve | Agency shows written, detailed PIP, supervisor testimony, and deciding official’s independent decision | PIP was detailed, communicated, offered reasonable opportunity, and removal was the deciding official’s independent decision |
| Procedural fairness (access to emails / oral response) | Beg asserts denied adequate time to access emails and was denied an oral reply | Agency provided written response opportunity, 4 hours access and chance to supplement; no record of denied oral request | No harmful procedural error shown; Beg failed to show how more access/oral reply would have changed outcome |
| Discrimination / Retaliation affirmative defenses | Beg alleges disparate treatment and reprisal for EEO activity | Agency points to lack of direct/circumstantial evidence and no motivating evidence of retaliation | Board and AJ found no direct or circumstantial evidence, no comparators, and no proof retaliation or discrimination motivated removal |
Key Cases Cited
- Crosby v. U.S. Postal Serv., 74 M.S.P.R. 98 (1997) (courts defer to AJ credibility findings when supported by reasoned conclusions)
- Griffin v. Dep’t of the Army, 23 M.S.P.R. 657 (1984) (agency must show OPM‑approved appraisal system in performance‑based actions)
- Daigle v. Dep’t of Veterans Affairs, 84 M.S.P.R. 625 (1999) (Board may require agency to submit evidence of OPM approval if specifically challenged)
- Fontes v. Dep’t of Transportation, 51 M.S.P.R. 655 (1991) (no prohibition on ex parte communications between agency officials during PIP)
- Andersen v. Dep’t of State, 27 M.S.P.R. 344 (1985) (deciding official must make independent removal decision in performance actions)
- Marques v. Dep’t of Health & Human Servs., 22 M.S.P.R. 129 (1984) (AJ need not discuss every piece of evidence to show it was considered)
- Stephen v. Dep’t of the Air Force, 47 M.S.P.R. 672 (1991) (harmful procedural error must be shown to have likely changed agency outcome)
- Baracco v. Dep’t of Transportation, 15 M.S.P.R. 112 (1983) (reversal requires procedural error likely affected outcome)
- Savage v. Dep’t of the Army, 122 M.S.P.R. 612 (2015) (standards for proving discrimination/hostile work environment)