Parrish v. Hhs

• Court: Court of Appeals for the Federal Circuit
• Decided: December 8, 2022
• Docket: 22-1170
• Status: Unpublished

Opinion

Case: 22-1170 Document: 79 Page: 1 Filed: 12/08/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

DONNA D. PARRISH, Petitioner

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent ______________________

2022-1170 ______________________

Petition for review of an arbitrator’s decision by Law- rence E. Little. ______________________

Decided: December 8, 2022 ______________________

DONNA D. PARRISH, Douglasville, GA, pro se.

MARGARET JANTZEN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY. ______________________

Before MOORE, Chief Judge, TARANTO and CHEN, Circuit Judges. Case: 22-1170 Document: 79 Page: 2 Filed: 12/08/2022

PER CURIAM. Donna D. Parrish, Ph.D., appeals from an arbitration decision affirming her removal from federal service for un- acceptable performance. Because substantial evidence supports the arbitrator’s decision, we affirm. BACKGROUND In December 2015, Dr. Parrish was hired as a program specialist at the Agency for Children and Families (ACF), a component of the Department of Health and Human Ser- vices (HHS). SAppx. 2. 1 As a program specialist, Dr. Par- rish’s responsibilities included developing relationships with state and local social services agencies and organiza- tions, maintaining state profiles listing relevant policy is- sues and contact information for state and local agencies, updating a strategic tracker related to HHS programs and initiatives, and organizing conferences with state and local agencies. See SAppx. 335–37; SAppx. 340–42; SAppx. 351–55; Appx. 431–32. Dr. Parrish reported to the Regional Administrator, Carlis Williams. SAppx. 14. In late 2017 and early 2018, Ms. Williams noticed a de- cline in Dr. Parrish’s work performance. SAppx. 17. Ms. Williams initiated several one-on-one meetings with Dr. Parrish from March to May 2018 in which she commu- nicated her concerns to Dr. Parrish and discussed ways for Dr. Parrish to improve her performance. SAppx. 13, 17. Dr. Parrish’s performance did not improve, however, and on May 21, 2018, Ms. Williams issued Dr. Parrish a Performance Deficiency Notice (Notice). SAppx. 334–38.

1 “SAppx.” citations herein refer to the appendix filed concurrently with Respondent’s brief. “Appx.” cita- tions refer to the appendix filed concurrently with Peti- tioner’s brief. Case: 22-1170 Document: 79 Page: 3 Filed: 12/08/2022

PARRISH v. HHS 3

The Notice identified aspects of Dr. Parrish’s performance that needed improvement and cited specific examples, in- cluding repeated failures to update the strategic tracker, failure to provide Ms. Williams with materials needed to attend a conference, and failure to incorporate comments and feedback from Ms. Williams in a conference presenta- tion. SAppx. 335–36. The Notice advised Dr. Parrish that she would be placed on a Performance Improvement Plan (PIP) if her performance did not improve. SAppx. 334, 337. On June 27, 2018, Dr. Parrish informed Ms. Williams that she was diagnosed with adjustment disorder and de- pressed mood. SAppx. 13. Dr. Parrish applied for and was granted a short period of leave under the Family Medical Leave Act (FMLA). SAppx. 15. Dr. Parrish’s performance again did not improve, and on August 9, 2018, Ms. Williams issued Dr. Parrish a PIP. SAppx. 339–46. The PIP identified performance deficien- cies similar to those identified in the Notice, including fail- ure to update the strategic tracker, failure to prepare and maintain state profiles, and failure to provide support for speaking engagements. SAppx. 340–42. The PIP required Dr. Parrish to meet with Ms. Williams weekly to discuss work assignments, deficiencies, and suggestions for im- provement. SAppx. 345. The PIP allowed Dr. Parrish 60 days to improve her performance. SAppx 342. On October 2, 2018, Dr. Parrish submitted several workplace accommodation requests, including three con- secutive days of telework at the end of each week, telecon- ferencing into meetings, short breaks, and a flexible work schedule. Appx. 802. Ms. Williams immediately approved Dr. Parrish’s request for three days of telework. SAppx. 348. Dr. Parrish’s performance did not improve during the period of her PIP. She failed to attend her scheduled meet- ings with Ms. Williams, declined to attend additional Case: 22-1170 Document: 79 Page: 4 Filed: 12/08/2022

meetings proposed by Ms. Williams, and failed to submit work assignments. SAppx. 13–15. On November 19, 2018, Ms. Williams notified Dr. Parrish that she proposed to re- move Dr. Parrish from federal service for unacceptable per- formance. SAppx. 347–56. That same day, Dr. Parrish was escorted out of her office, and her computer and access card were confiscated. Appx. 446; Appx. 669. Dr. Parrish sought representation by the National Treasury Employees Union (Union). SAppx. 2, 17–18. At the Union’s request, the deciding official, Joyce Thomas, met with Dr. Parrish and her Union representative on De- cember 10, 2018, to provide Dr. Parrish the opportunity to respond to the proposed removal. Appx. 420; Appx. 430; SAppx. 18. Ms. Thomas then approved Dr. Parrish’s re- moval on January 7, 2019. SAppx. 15. The Union invoked arbitration. Following a two-day hearing and post-hearing briefing, the arbitrator found that HHS had shown sufficient cause to remove Dr. Parrish and denied Dr. Parrish’s grievance. SAppx. 25–26. Dr. Parrish appeals that decision. We have jurisdiction pursuant to 5 U.S.C. §§ 7121(f) and 7703. DISCUSSION We review an arbitrator’s decision under the same standard of review that is applied to decisions from the Merit Systems Protection Board. Miskill v. Soc. Sec. Ad- min., 863 F.3d 1379, 1382 (Fed. Cir. 2017) (first citing 5 U.S.C. § 7121(f); and then citing Johnson v. Dep’t of Veter- ans Affs., 625 F.3d 1373, 1376 (Fed. Cir. 2010)). We thus affirm the decision of the arbitrator unless it is: “(1) arbi- trary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures re- quired by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” Id. (quoting 5 U.S.C. § 7703(c)(1)–(3)). We review questions of law de Case: 22-1170 Document: 79 Page: 5 Filed: 12/08/2022

PARRISH v. HHS 5

novo and questions of fact for substantial evidence. See Wrocklage v. Dep’t of Homeland Sec., 769 F.3d 1363, 1366 (Fed. Cir. 2014). Substantial evidence is “such relevant ev- idence as a reasonable mind might accept as adequate to support a conclusion.” McLaughlin v. Off. of Pers. Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004). The burden of prov- ing reversible error rests on Dr. Parrish. See Pucilowski v. Dep’t of Just., 498 F.3d 1341, 1344 (Fed. Cir. 2007). To remove an underperforming employee under 5 U.S.C. § 4303, an agency must: “(a) establish an approved performance appraisal system; (b) communicate the perfor- mance standards and critical elements of an employee’s po- sition to the employee; (c) warn the employee of inadequacies in ‘critical elements’; and (d) offer an under- performing employee counseling and an opportunity for im- provement.” Santos v. Nat’l Aeronautics & Space Admin., 990 F.3d 1355, 1361–62 (Fed. Cir. 2021) (citation omitted). When an agency chooses to terminate an employee after issuing a PIP, the agency must prove that the employee’s performance “was unacceptable before the PIP and re- mained so during the PIP.” Id. at 1363. Here, after reciting the relevant sections of HHS’s ap- proved performance appraisal system, the arbitrator found that HHS communicated valid performance standards and critical elements to Dr. Parrish and warned Dr. Parrish that she was not meeting those standards, SAppx. 21–23; that Dr. Parrish was offered counseling and was provided a reasonable opportunity to improve, SAppx. 23–24; and that Dr. Parrish’s performance was unacceptable both be- fore and after receiving the PIP. SAppx. 24–25. Substantial evidence supports these findings. The No- tice and PIP communicated the performance standards and critical elements of Dr. Parrish’s position to her, described specific examples and instances where Dr. Parrish’s perfor- mance was deficient, and explained what Dr. Parrish was Case: 22-1170 Document: 79 Page: 6 Filed: 12/08/2022

doing incorrectly as compared to the expectation for that specific task. SAppx. 335–37; SAppx. 340–42. The Notice and PIP also warned Dr. Parrish that she might be re- moved from federal service if her performance did not im- prove. SAppx. 337; SAppx. 345. Dr. Parrish was then provided almost six months between the Notice and the proposal for her removal to improve her performance, dur- ing which she received direct feedback and counseling from Ms. Williams. SAppx. 13–14; SAppx334; SAppx. 347–48. Her performance, however, continued to be unacceptable after receiving the PIP. For example, she failed to meet minimally acceptable performance in any of the ten assign- ments listed in her PIP, including again failing to maintain state profiles. SAppx. 349–55. Thus, substantial evidence supports the arbitrator’s findings. We understand Dr. Parrish to make five arguments on appeal, but none are persuasive. First, Dr. Parrish asserts that her removal was based on false or fraudulent docu- ments and points the court to a list of documents in an un- related Formal Individual Complaint for Employment Discrimination. See, e.g., Pet. Br. 2, 5, 15, 17–19, 23, 25; Pet. Reply Br. 2–4, 10–11, 13–15. To the extent Dr. Parrish contests the evidentiary burden for her removal, the arbi- trator’s conclusion that HHS met its burden of proof is sup- ported by substantial evidence. Further, Dr. Parrish does not appear to have argued to the arbitrator that the listed documents were fraudulent, and thus this argument is waived. See Snyder v. Dep’t of Navy, 854 F.3d 1366, 1375 (Fed. Cir. 2017) (“It is well-established that an agency is not required to respond to arguments that were never made to the agency.”). And even if we could consider the list of documents in the Employment Discrimination Com- plaint, Dr. Parrish fails to explain how any of the docu- ments are false or fraudulent. The only document to which Dr. Parrish raises specific arguments of fraud is a Denial of Within-Grade Increase that she received one week after Case: 22-1170 Document: 79 Page: 7 Filed: 12/08/2022

PARRISH v. HHS 7

the Notice. Appx. 851–53. Dr. Parrish asserts this docu- ment incorrectly states that her most recent rating of rec- ord was “unacceptable” and incorrectly states the completion date of her 52-week waiting period. See, e.g., Pet. Br. 2, 4–5, 15, 18, 25–26; Pet. Reply Br. 12. But even if this document is inaccurate, it is not relevant to her re- moval from federal service, and it was not cited or relied on by the arbitrator. As Dr. Parrish’s counsel explained in the post-hearing briefing below, the denial of Dr. Parrish’s within-grade increase is “not part of the issue at hand.” Appx. 454. Second, Dr. Parrish asserts that the arbitrator erred in finding the testimony of Ms. Williams and Ms. Thomas was credible. See, e.g., Pet. Br. 2; Pet. Reply Br. 1. Credibility determinations, however, are “virtually unreviewable on appeal.” See Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002) (citing Pope v. U.S. Postal Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997)). Regardless, we are not persuaded that the arbitrator’s credibility determinations should be disturbed because Dr. Parrish has not shown that the testimony of Ms. Williams or Ms. Thomas is inher- ently improbable or discredited by undisputed fact. See Grubka v. Dep’t of the Treasury, 858 F.2d 1570, 1574 (Fed. Cir. 1988), abrogated on other grounds by Bieber, 287 F.3d at 1362 (noting that credibility determinations may be re- viewed if the determinations are “inherently improbable or discredited by undisputed fact”). Third, Dr. Parrish argues that her due process rights were violated when she was denied access to her work com- puter, thus preventing her from fully defending against the proposal to remove. Pet. Br. 3, 9–11, 13–14; Pet. Reply Br. 5. But Dr. Parrish fails to explain how losing access to her work computer inhibited her defense, and she has not identified any information that she was precluded from in- troducing at the meeting with Ms. Thomas or in Case: 22-1170 Document: 79 Page: 8 Filed: 12/08/2022

arbitration. Thus, Dr. Parrish has not persuaded us that her due process rights were violated. Fourth, Dr. Parrish cites Santos to argue she did not meet the requirements to be placed on PIP because her prior annual rating indicated that she achieved expected results, and she had not previously received a poor perfor- mance rating or a midterm rating indicating poor perfor- mance. See, e.g., Pet. Br. 10–12, 14–16, 19, 23, 27–28; Pet. Reply Br. 7, 15. Dr. Parrish misapplies our holding in San- tos. There, we explained that an agency imposing a post- PIP termination must prove that the employee’s unac- ceptable performance existed before the PIP and remained unacceptable during the PIP. Santos, 990 F.3d at 1363. Here, as discussed above, substantial evidence supports the arbitrator’s findings that Dr. Parrish’s performance was unacceptable before the Notice, remained unaccepta- ble after she was issued the Notice and before she was is- sued the PIP, and continued to be unacceptable after she received the PIP. Finally, to the extent Dr. Parrish argues that her ongo- ing medical issues, as demonstrated by her request for rea- sonable accommodations, precluded her removal, see Pet. Br. 7–9, 28, the arbitrator reasonably found that Dr. Par- rish had not submitted medical evidence to substantiate her claim that her mental health was the basis for her poor performance, SAppx. 24. The Certification of Health Care Provider for Dr. Parrish’s FMLA request, for example, stated that Dr. Parrish’s condition would not cause periodic episodes that would prevent her from performing her job function. Appx. 977. Similarly, the Reasonable Accommo- dations Coordinator at the Office of Diversity Management and Equal Employment Opportunity advised Ms. Williams that that “there does not appear to be any medical condi- tion that affects [Dr. Parrish’s] overall ability to work” and “recommended that [Dr. Parrish’s] requests be processed outside of the framework of reasonable accommodation.” Case: 22-1170 Document: 79 Page: 9 Filed: 12/08/2022

PARRISH v. HHS 9

Appx. 804. Thus, Dr. Parrish has not convinced us that substantial evidence does not support the arbitrator’s find- ing that no evidence was provided to confirm that Dr. Par- rish had a mental disability that impaired her job performance. CONCLUSION We have considered Dr. Parrish’s remaining argu- ments and find them unpersuasive. Substantial evidence supports the arbitrator’s decision to uphold Dr. Parrish’s removal, and we therefore affirm. AFFIRMED COSTS No costs.