Janet L. Wallace v. Department of the Air Force

879 F.2d 829, 1989 U.S. App. LEXIS 9842
CourtCourt of Appeals for the Federal Circuit
DecidedJuly 12, 1989
Docket18-2084
StatusPublished
Cited by62 cases

This text of 879 F.2d 829 (Janet L. Wallace v. Department of the Air Force) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Janet L. Wallace v. Department of the Air Force, 879 F.2d 829, 1989 U.S. App. LEXIS 9842 (Fed. Cir. 1989).

Opinions

FRIEDMAN, Circuit Judge.

This is a petition to review a decision of the Merit Systems Protection Board (Board) upholding the removal of the petitioner for unacceptable performance. Wallace v. Department of Air Force, 36 M.S.P.R. 573 (1988). We affirm.

I

The petitioner, Ms. Wallace, served with the Air Force as a clerk-typist and clerk from January 1977 until her removal in April 1983. During her last two years there, Ms. Wallace received overall evaluation ratings of “unacceptable” in her first and second performance appraisals and was denied two consecutive “within-grade increases.” The first performance appraisal rated Ms. Wallace as not meeting the standard in three critical job performance elements: office administration, final product implementation, and contacts and communications. The performance rating noted the following comment pertaining to the office administration element: “Workload flow is unsatisfactory since both high and lower priority work must frequently be given to another secretary to insure established deadlines are met.”

At counseling sessions held after the first appraisal, her supervisor, Mr. Ellis, informed Ms. Wallace of the need to improve her typing, proofreading, attention to detail and office procedure, and filing. Mr. Ellis assigned his lead secretary, Ms. Capps, to review Ms. Wallace’s work, to point out errors, and otherwise to assist Ms. Wallace in improving her performance.

The second performance appraisal rated Ms. Wallace’s performance as unacceptable in the critical elements of office administration and final product implementation. The rating listed the following under “Office Administration:” “(b) Backlog of unfiled material is high and the condition of the assigned files was not acceptable, requiring the senior secretary to redo them, (c) Workload does not flow smoothly and sus-penses have been missed. Supervisory assistance is required frequently to set priorities due to the high typing backlog.”

The Air Force subsequently removed Ms. Wallace for “failure to adequately meet the standards for [two] critical elements [office administration and final product implementation]” of her job.

Ms. Wallace filed a formal complaint with the Equal Employment Opportunity Commission (EEOC) alleging age discrimination in her removal. After a hearing, the EEOC Complaints Examiner recommended a finding of no discrimination, a recommendation which the Air Force adopted.

Ms. Wallace then appealed her removal to the Board. After a hearing, at which the transcript from the EEOC proceeding was incorporated into the record, the administrative judge sustained the removal on the basis of Ms. Wallace’s unacceptable performance of the critical element “Final Product Implementation,” as evidenced by her typing and formatting errors. .

The Board vacated the initial decision and remanded the case for further proceedings, Wallace v. Department of the Air Force, 34 M.S.P.R. 605 (1987), because the administrative judge had improperly relied on carbon copies, rather than final work-product, in making his findings regarding typing errors.

On remand, the administrative judge again sustained the removal, this time on the ground that Ms. Wallace’s unacceptable performance in two components of the critical element “Office Administration” — untimely filing of documents and unacceptable work flow — was supported by substantial evidence. The Board denied review of that decision.

II

Under 5 U.S.C. § 4303(a) (1982), an agency may remove an employee for “unacceptable performance,” which 5 U.S.C. § 4301(3) defines as performance that “fails to meet established performance standards in one or more critical elements of such employee’s position.” Section 4302(b)(1) requires the establishment of [832]*832“performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria ... related to the job in question for each employee or position....”

A. Ms. Wallace first contends that the performance standards upon which she was evaluated and removed are vague, subjective, and nonspecific, and therefore her removal was invalid under 5 U.S.C. § 4302 and this court’s decision in Wilson v. Department of Health and Human Servs., 770 F.2d 1048 (Fed.Cir.1985). The Air Force Performance Standards with regard to these two components are as follows:

(b) Backlog of unfiled material is minimal. Formal inspections reveal few minor and no major deficiencies.
(c) Workload flows smoothly with little interruption, following established priorities. Problems of priority conflict are promptly referred to the supervisor for resolution.

Because Ms. Wallace failed properly to raise this issue before the Board, it is not open to her on this appeal, and we do not consider it. Meglio v. Merit Sys. Protection Bd., 758 F.2d 1576, 1577 (Fed.Cir.1985); Thomas v. General Servs. Admin., 794 F.2d 661, 666 (Fed.Cir.1986).

Ordinarily, appellate courts refuse to consider issues not raised before an administrative agency. Cecil v. Department of Transp., 767 F.2d 892, 894 (Fed.Cir.1985); Synan v. Merit Sys. Protection Bd., 765 F.2d 1099, 1101 (Fed.Cir.1985); Haynes v. United States, 190 Ct.Cl. 9, 418 F.2d 1380, 1383 (1969). “[O]bjections to the proceedings of an administrative agency [must] be made while it has an opportunity for correction in order to raise issues reviewable by the courts.” United States v. Tucker Truck Lines, 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952); cf. Pine v. United States, 178 Ct.Cl. 146, 371 F.2d 466, 468 (1967). A corollary is that the issue must be raised with sufficient specificity and clarity that the tribunal is aware that it must decide the issue, and in sufficient time that the agency can do so.

The ways in which Ms. Wallace claims she raised the issue did not alert the administrative judge that the issue was before him. Ms. Wallace’s only explicit challenge to the validity of the performance standards was in her petition to the Board to review the second decision of the administrative judge, which the Board denied. That attempt to raise the issue came too late, since the administrative judge had no opportunity to receive evidence on the issue or to decide it. Meglio, supra

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Vincent M Rister v. Department of Agriculture
Merit Systems Protection Board, 2025
Wilma J Bradley v. Department of Education
Merit Systems Protection Board, 2024
Burke v. Hhs
Federal Circuit, 2024
Lucas v. USPS
Federal Circuit, 2024
Davis v. Opm
Federal Circuit, 2024
Gomez-Rodriguez v. Army
Federal Circuit, 2023
Mary Jordan v. Department of the Navy
Merit Systems Protection Board, 2023
Kelly v. United States
Federal Claims, 2021
SawStop Holding LLC v. Iancu
E.D. Virginia, 2021
Garvin v. MSPB
Federal Circuit, 2018
Google Inc. v. Simpleair, Inc.
682 F. App'x 900 (Federal Circuit, 2017)
Microsoft Corporation v. Enfish, LLC
662 F. App'x 981 (Federal Circuit, 2016)
Teufel v. Department of the Army
608 F. App'x 705 (Tenth Circuit, 2015)
Stoglin v. Merit Systems Protection Board
603 F. App'x 952 (Federal Circuit, 2015)
Duncan v. Merit Systems Protection Board
601 F. App'x 954 (Federal Circuit, 2015)
Cothron-Mallett v. Merit Systems Protection Board
590 F. App'x 967 (Federal Circuit, 2014)
Linn v. Office of Personnel Management
566 F. App'x 962 (Federal Circuit, 2014)
Gipson v. Department of Treasury
549 F. App'x 979 (Federal Circuit, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
879 F.2d 829, 1989 U.S. App. LEXIS 9842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/janet-l-wallace-v-department-of-the-air-force-cafc-1989.