Asokkumar Pal v. Department of Commerce

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3213
ASOKKUMAR PAL,
Petitioner,
v.
DEPARTMENT OF COMMERCE,
Respondent.
Asokkumar Pal, of Gaithersburg, Maryland, pro se.
Michael N. O’Connell, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E.
Davidson, Director, and Kirk T. Manhardt, Assistant Director.
Appealed from: Merit Systems Protection Board

-- 1 of 8 --

NOTE: This disposition is nonprecedential
United States Court of Appeals for the Federal Circuit
2008-3213
ASOKKUMAR PAL,
Petitioner,
v.
DEPARTMENT OF COMMERCE,
Respondent.
Petition for review of the Merit Systems Protection Board in
DC0432070158-I-2.
_________________________
DECIDED: December 8, 2008
__________________________
Before LOURIE, CLEVENGER and LINN, Circuit Judges.
CLEVENGER, Circuit Judge.
Asokkumar Pal (“Pal”) seeks review of the final decision of the Merit Systems
Protection Board (“Board”) sustaining his removal from the position of patent examiner,
review quality assurance specialist. Pal v. Dep’t of Commerce, No. DC0432070158-I-2
(Feb. 6, 2008). We affirm.
I
The key component of Pal’s job, for purposes of this appeal, consisted of
reviewing the quality of patent examination work products generated by patent

-- 2 of 8 --

examiners, who, like Pal, work in the United States Patent and Trademark Office
(“agency”) within the Department of Commerce. This component of Pal’s work involved
his close review of the actions of patent examiners who regularly reject or accept claims
asserted by patent applicants. After review by Pal, he was expected to conclude either
that a particular examiner had correctly decided the issues before him, or had made
errors in deciding the issues before him.
The agency regularly conducts performance appraisals of the work of its
employees. As part of the appraisal of Pal’s work during fiscal 2005 and 2006, the
agency assessed the review work done by Pal under the critical element “Quality
Monitoring.” The purpose of reviewing Pal’s work under this particular critical element
was to determine whether he had correctly judged the work of the particular examiners.
In other words, Pal’s job was to grade the work of particular examiners, and the
performance appraisal of Pal's work graded whether Pal’s work was correct or
contained error.
On December 8, 2005, Pal’s second-line supervisor, Paula Hutzell (“Hutzell”)
gave Pal a written warning that his performance for fiscal year 2005 was unacceptable
in two critical elements, “Quality Monitoring” and training. As a result of this
unsatisfactory rating, the agency placed Pal in a performance improvement period
(“PIP”), which would take place from December 11, 2005 to March 18, 2006. The object
of the PIP was to give Pal the opportunity to perform at a level above “Unacceptable.”
Pal understood that to avoid an “Unacceptable” grade for his work during the PIP, he
could not have an error rate greater than 25 percent.
2008-3213 2

-- 3 of 8 --

In order to grade an employee’s performance during a PIP, the agency practice
at the time was to judge the work done during the entire PIP period by taking a random
sample of work done during the PIP on individual cases of decisions by particular
examiners. During the PIP period, Pal completed review of 139 cases, representing
decisions made by examiners on claims made by patent applicants. By random
selection, 16 of Pal’s reviews were selected for testing. Each of the cases in which Pal
had found fault with an examiner was reviewed, and a sample of cases in which he
found no fault was identified by simply picking cases by pointing to the files. Diana
Dudash (“Dudash”), Pal’s first-line supervisor, and a colleague, Anthony Caputa
(“Caputa”) reviewed the 16 randomly selected cases. They determined that Pal
committed six errors in the 16 cases, yielding an unacceptable error rate of 37.5
percent.
If action was to be taken against Pal for failure of the PIP, the task of proposing
official would fall to Hutzell, Pal’s second-line supervisor. Dudash provided Hutzell with
a summary of the work she had graded in the random sample. Hutzell made an
independent review of that work and agreed with Dudash’s assessment. Hutzell also
reviewed the assessment by Caputa that Pal had committed six errors, as well as the
assessment of David Lacey, who also reached the same conclusion. Hutzell proposed
that Pal be removed from his position because he failed the PIP.
Margaret A. Focarino (“Focarino”), Deputy Commissioner for Patent Operations,
was the deciding official for Pal’s case. Focarino reviewed Hutzell’s detailed proposal of
removal, as well as Pal’s written and oral replies. Focarino asked Steven Griffin
2008-3213 3

-- 4 of 8 --

(“Griffin”), a Supervisory Patent Examiner, to review in detail the six identified errors.
Griffin did so, and concluded that the assignment of error was reasonable.
On November 2, 2006, Focarino acted on Hutzell’s recommendation. Although
she concluded that Pal had improved his performance on the critical element of training,
she decided that Pal’s performance under the critical element of "Quality Monitoring"
was unacceptable. She therefore notified Pal that effective November 3, 2006, he
would be removed.
II
Pal appealed his removal to the Board. The administrative judge (“AJ”) assigned
to the appeal conducted a hearing, at which Pal was represented by counsel. After
hearing the evidence, the AJ concluded that the PIP had been properly conducted and
that substantial evidence supported the determination that Pal’s performance during the
PIP had been unacceptable due to the error rate assigned to the random sample of his
work. The AJ’s decision upholding the agency’s removal action is dated July 27, 2007.
Pal sought review of the AJ’s decision by the full Board, which denied his petition on
February 6, 2008, thus making the AJ’s decision the final decision of the Board. Pal
then timely sought review in this court.
III
We must affirm the final decision of the Board unless we determine that it is
arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
5 U.S.C. § 7703(c). Facts found by the Board must be supported by substantial
evidence. Id. Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Brewer v. U.S. Postal Serv.,
2008-3213 4

-- 5 of 8 --

647 F.2d. 1093, 1096 (Ct. Cl. 1981) (quoting Consolidated Edison Co. v. Nat’l Labor
Relations Bd. 305 U.S. 197, 229 (1938)). This is a highly deferential standard of review:
if the Board rests its decision on evidence that could lead a reasonable mind to reach
the conclusion reached by the Board, we must accept the Board’s decision.
On appeal to this court, Pal mounts essentially the same arguments he raised
unsuccessfully before the Board. He contests the PIP process itself, by alleging fatal
flaw in the process because only a sample of his work was graded, and further that the
method of selecting the sample was scientifically inadequate. The Board rejected Pal’s
challenge to the process because there is no requirement that the agency must use any
particular method for picking which work performed in a PIP will be subject to test. We
agree with the Board, and we see nothing unfair or unlawful in the way the agency
selected which of Pal’s work during the PIP period would be tested.
As part of his challenge to the overall PIP process, Pal also contends that the
deciding official (Focarino) should not have been allowed to decide his fate, because
she admitted a lack of background in the technology Pal was working with. Pal assigns
reversible error to the fact that Focarino relied on Griffin, who possessed the requisite
science background. Focarino testified that she reviewed the proposed removal letter
and Pal’s oral and written replies. She candidly admitted that she relied on Griffin. Pal
points to no law that prevents a deciding official from seeking advice of someone more
familiar with the science at issue. We see no error where a deciding official seeks
assistance to understand the matter at hand.
Pal also contends that those who graded his work did not understand, and
indeed misapplied, the law he applied when he graded the individual examiners. In
2008-3213 5

-- 6 of 8 --

other words, Pal asserts that his judges were inadequate to the task, since they made
errors in judging Pal’s work. The substantial evidence standard of review stands in the
way of Pal’s criticism of his judges.
Dudash provided a detailed explanation of each of the six errors found in the 16
cases selected for grading. Dudash testified at length on the reasoning for her grade of
error in the six instances, and others named above also testified that they were in
agreement with Dudash. The Board found the testimony of Dudash and the others
credible and sufficient for a reasonable mind to conclude that six errors had been
committed.
Pal has provided the court with extensive briefs that present further arguments
that challenge the PIP process itself and the judgments reached by those who judged
his work and finally ordered his removal. We have reviewed each of those arguments
with care. Pal’s arguments present no reversible error. Substantial evidence shows
that the process was fair and that on the record as a whole, a reasonable mind could
reach the same conclusion as reached by the Board.
The Board expressed its sympathy for Pal as follows:
[I]t is extremely unfortunate that the agency could not have found another
position for the Appellant, who seems to have many talents and has been
a successful Federal employee for most of his lengthy career.
The Board, however, is without power to mitigate Pal’s removal. The law is clear that
when an employee fails a PIP, the agency has the sole discretion to decide whether to
remove or demote the employee. See Lisiecki v. Merit Sys. Prot. Bd., 769 F.2d 1558,
1566 (Fed. Cir. 1985). Like the Board, we too are powerless to mitigate Pal’s removal.
2008-3213 6

-- 7 of 8 --

2008-3213 7
Because the Board’s final decision is supported by substantial evidence and not
contrary to law, we must affirm.
COSTS
No costs.

-- 8 of 8 --