Gary Fisher v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GARY FISHER,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2011-3046
__________________________
Petition for review of an arbitrator’s decision in FMCS
case no. 101229-52599-6 by Susan R. Meredith.
_________________________
Decided: November 14, 2011
_________________________
M. JEFFERSON EUCHLER, Law Office of M. Jefferson
Euchler, of Virginia Beach, Virginia, for petitioner.
ELIZABETH M. H OSFORD , Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent. With her on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. D AVIDSON , Director, and
BRIAN M. SIMKIN , Assistant Director.
__________________________

-- 1 of 6 --

FISHER v. VA 2
Before PROST, SCHALL, and MOORE, Circuit Judges.
S CHALL, Circuit Judge.
D ECISION
Gary Fisher petitions for review of the decision of an
arbitrator sustaining his removal by the Department of
Veterans Affairs (“VA”) for unacceptable performance.
Dep’t of Veteran Affairs v. Am. Fed’n of Gov’t Employees,
Local 3698, FMCS No. 101229-52599-6 (2010) (Meredith,
Arb.). We affirm.
D ISCUSSION
I.
The pertinent facts are not in dispute. At the time of
his removal, Mr. Fisher was employed by the VA at its
Veterans Service Center in Manchester, New Hampshire,
as a GS-12 Rating Veterans Service Representative
(“Rating Specialist”). Ratings Specialists prepare ratings
decisions in connection with veterans’ claims for benefits.
On May 27, 2009, Bruce Keller, a supervisor at the
Manchester Service Center, met with Mr. Fisher to dis-
cuss his performance. Mr. Keller informed Mr. Fisher
that the quality of his work had fallen below the mini-
mum acceptable level of performance for a GS-12 Rating
Specialist. That minimum acceptable level of perform-
ance was an average accuracy rate of 85 percent or better
in ratings decisions for the evaluation year.
On June 29, 2009, Mr. Keller provided Mr. Fisher
with a memorandum stating that he was being placed on
a performance improvement plan (“PIP”) because his
performance continued to be unacceptable. Under the
terms of the PIP, which went into effect on July 1, 2009,
Mr. Fisher was given until September 29, 2009, to im-
prove his performance. The PIP stated that, during the

-- 2 of 6 --

FISHER v. VA 3
July – September period, Mr. Fisher would be required to
“show continuous improvement toward the achievement
of the minimally acceptable level of rating accuracy” and
that, “[b]y the end of the fiscal year (September 30,
2009),” he “must have achieved a cumulative accuracy
rate of 85 % or better.” PIP ¶ 3.
On September 30, 2009, Veterans Service Center
Manager Sandy Hill presented Mr. Fisher with a notice of
proposed removal. Ms. Hill informed Mr. Fisher in the
notice that he had failed to meet the requirements of the
PIP. Specifically, Ms. Hill stated that although his Rat-
ing Specialist position required an average accuracy rate
of 85 percent or better throughout the year, based upon a
review of his August cases, Mr. Fisher had achieved only
a 70 percent cumulative average. Ms. Hill further stated
that, over the period of the PIP, Mr. Fisher’s cumulative
average had declined from 82.6 percent to 70 percent.
Subsequently, on October 30, 2009, the VA’s Regional
Office Director notified Mr. Fisher that he was being
removed from his position as a Rating Specialist for
failure to meet the requirements of his position for accu-
racy in rating decisions.
Mr. Fisher’s union, the American Federation of Gov-
ernment Employees (“AFGE”), timely commenced griev-
ance proceedings concerning his removal. In due course,
after the VA denied the grievance, AFGE invoked arbitra-
tion on Mr. Fisher’s behalf. In her final decision, the
arbitrator sustained the VA’s removal. This appeal
followed.
II.
We have jurisdiction over Mr. Fisher’s appeal pursu-
ant to 5 U.S.C. §§ 7121(f) and 7703. We review an arbi-
trator’s decision under the same standard that would be
applied if the matter had been decided by the Merit

-- 3 of 6 --

FISHER v. VA 4
Systems Protection Board. 5 U.S.C. § 7121(f). Our scope
of review in such cases is limited. Specifically, we must
affirm the arbitrator’s decision unless we find it to be (1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence. 5
U.S.C. § 7703(c). Mr. Fisher raises two arguments on
appeal. We address them in turn.
A.
Mr. Fisher does not dispute that he failed to meet the
85 percent cumulative accuracy rate that the VA applied
to GS-12 Rating Specialists and that was set forth in the
PIP. Rather, he contends that the performance standard
to which he was held under the PIP was unreasonable.
This argument has two aspects to it. First, Mr. Fisher
argues that it was unreasonable for the PIP to require, as
it did, that by September 30, 2009, he attain a cumulative
accuracy rate of 85 percent or better. He reasons that
“[t]hus an employee who is presumably struggling will be
required during their PIP to exceed their standard by
enough to make up for the previous nine months.” Pet’r’s
Br. 8. Under these circumstances, Mr. Fisher states, “an
employee is penalized for their workload prior to any of
the remedial actions being taken that are supposed to
improve their performance.” Id. at 9. Second, Mr. Fisher
argues that the 85 percent accuracy standard was per se
unreasonable. Id. at 13-15.
At the outset, before addressing Mr. Fisher’s chal-
lenge to the 85 percent accuracy standard, it is to be
remembered that the PIP also required Mr. Fisher to
show continuous improvement toward achievement of the
minimally acceptable level of rating accuracy for GS-12
Rating Specialists. As far as that requirement is con-

-- 4 of 6 --

FISHER v. VA 5
cerned, it is undisputed that in July of 2009 Mr. Fisher’s
cumulative annual accuracy rate was 78.18 percent, in
August it was 75.28 percent, and by the end of September
it had fallen to 70 percent. In fact, during August of 2009,
Mr. Fisher’s rating accuracy was only 50 percent. Thus,
during the period of the PIP, not only did Mr. Fisher fail
to demonstrate improvement in his performance, but his
level of performance declined.
Turning to the requirement of an 85 percent accuracy
rate, we do not agree that the PIP held Mr. Fisher to an
unreasonable standard. While it is true that an employee
who is placed on a PIP and performs satisfactorily during
the PIP may not be penalized for unacceptable perform-
ance occurring prior to the PIP, see James v. Veterans
Admin., 27 M.S.P.R. 124, 127 (1985), that proposition
does not apply in this case. As seen, Mr. Fisher’s per-
formance was not satisfactory during the PIP. Thus, this
case does not present the situation of an employee whose
work improves during a PIP but who still is unable to
meet an overall yearly performance standard because of
work deficiencies prior to the PIP. In any event, we are
not prepared to say on the record before us that it was
unreasonable for the VA to require Mr. Fisher to perform
at the level required for his position. As the government
points out, see Resp’t’s Br. 24, Mr. Fisher could have
achieved an 85 percent cumulative accuracy rate if,
during the period of the PIP, he had accurately rated 27 of
the 30 cases he reviewed. Moreover, Mr. Fisher has failed
to demonstrate that a cumulative rating accuracy rate of
85 percent was unreasonable for GS-12 Rating Special-
ists.
B.
Mr. Fisher’s second argument on appeal is that during
the PIP (and especially its first month), he was given

-- 5 of 6 --

FISHER v. VA 6
inadequate supervisory assistance and guidance. Pet’r’s
Br. 9. We reject this argument. The record reveals that
during the first month of the PIP, Mr. Fisher was out of
the office for much of the time on annual leave, sick leave,
or authorized leave, or on account of his work schedule.
As a result, during July, his availability rate – the time he
was available to rate cases – was only 25.74 percent. The
record also reveals that, as the arbitrator found, Ms. Hill
made repeated attempts after that first month to review
with Mr. Fisher his work. However, Mr. Fisher was
uncooperative and rebuffed those attempts.
III.
For the foregoing reasons, the decision of the arbitra-
tor is affirmed.
Each party shall bear its own costs.
AFFIRMED

-- 6 of 6 --