Todd I. Weathersbee v. Department of the Treasury
Background
- Appellant Todd Weathersbee, a GS-11 IRS Revenue Officer in San Diego, was placed on a 90‑day performance improvement plan (PIP) after being notified of unacceptable performance in multiple critical elements and given 47 specific examples.
- During the PIP and subsequent review, supervisors found continued unacceptable performance; a removal proposal listed numerous specific deficiencies, and the agency removed him effective May 15, 2015.
- Appellant appealed to the MSPB claiming (1) harmful procedural error (nonreceipt of the decision letter; PIP time lost to medical leave), (2) discrimination (race, color, sex), and (3) retaliation for prior EEO activity; he requested a hearing but the AJ decided the case on the written record.
- The AJ found the performance system valid, the appellant was given notice and a reasonable opportunity to improve, and the agency proved by substantial evidence that performance remained unacceptable; she affirmed the removal.
- The AJ rejected the procedural‑error claim (presumed delivery of the decision letter; PIP effectively extended and appellant refused to participate), and found no persuasive evidence of discrimination or retaliation.
- The Board denied the petition for review, concluding the appellant showed no basis under 5 C.F.R. § 1201.115 to disturb the initial decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction | Weathersbee asserted Board has jurisdiction over his removal under chapter 43 and contested nonreceipt of final decision | Agency produced final decision and records showing mailing; AJ found jurisdiction because final decision issued | Board ruled AJ properly found jurisdiction and proceeded to merits |
| Harmful procedural error — nonreceipt of decision letter | Appellant denied receiving any mailed decisions and argued mail center refused them | Agency mailed three copies (certified, UPS, first‑class); two returned as refused by appellant’s mail agent; first‑class presumed delivered | Board upheld AJ: presumption of mailing/delivery applies; appellant failed to rebut; no harmful error shown |
| Harmful procedural error — PIP time lost to medical leave | Appellant claimed 23 days of medical leave deprived him of full 90‑day PIP | Agency extended/suspended PIP around leave; AJ found he effectively had full PIP and he refused to participate | Board affirmed AJ: even if extension error, appellant didn’t show prejudice or that extra time would change outcome |
| Discrimination/retaliation | Appellant alleged removal motivated by race/color/sex and retaliation for prior EEO complaints | Agency argued removal was supported by substantial evidence of unacceptable performance and no similarly situated comparators shown | Board affirmed AJ: appellant failed to prove discriminatory/retaliatory motive or pretext; AJ’s factual credibility findings stand |
Key Cases Cited
- DePauw v. U.S. International Trade Commission, 782 F.2d 1564 (Fed. Cir.) (detailed specifications in a removal notice may be considered evidence)
- Liteky v. United States, 510 U.S. 540 (1994) (bias standard for adjudicators: deep‑seated favoritism or antagonism required)
- Bieber v. Department of the Army, 287 F.3d 1358 (Fed. Cir.) (same standard for judicial relief for adjudicator bias)
- Vena v. Department of Labor, 111 M.S.P.R. 165 (2009) (no prejudice where procedural error would not likely have changed outcome)
- Williamson v. U.S. Postal Service, 106 M.S.P.R. 502 (2007) (presumption that documents mailed are received within five days)
- Savage v. Department of the Army, 122 M.S.P.R. 612 (2015) (standards for assessing discrimination/retaliation claims in MSPB appeals)
- Crosby v. U.S. Postal Service, 74 M.S.P.R. 98 (1997) (deference to AJ credibility and factual findings)
- Smets v. Department of the Navy, 117 M.S.P.R. 164 (2011) (sanctions for failure to comply with deposition orders may include evidentiary preclusion)
- Oliver v. Department of Transportation, 1 M.S.P.R. 382 (1980) (presumption of honesty and integrity for administrative adjudicators)
- Young v. U.S. Postal Service, 115 M.S.P.R. 424 (2010) (addressing claims of adjudicator bias)