Gian Duri v. Department of the Navy

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GIAN DURI,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2023-2246
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0432-22-0438-I-1.
______________________
Decided: January 16, 2025
______________________
GIAN CARLO DURI, Pacific Grove, CA, pro se.
DELISA SANCHEZ, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, ALBERT S. IAROSSI, PATRICIA M.
MCCARTHY.
______________________
Before DYK, PROST, and CUNNINGHAM, Circuit Judges.
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DURI v. NAVY 2
PER CURIAM.
Gian C. Duri has petitioned for review of the Merit
Systems Protection Board’s (“MSPB”) decision affirming
the Department of the Navy’s (“agency”) performance-
based removal of Mr. Duri. Duri v. Dep’t of the Navy,
No. SF-0432-22-0438-I-1, 2023 WL 3440813 (M.S.P.B. May
8, 2023) (“Decision”). For the following reasons, we affirm.
BACKGROUND
Mr. Duri was a General Engineer, GS-0801-11, at the
Naval Postgraduate School (“NPS”) in Monterey,
California. A GS-0801-11 General Engineer at NPS
“serve[s] as staff advisor to the NPS Director of Facilities
on problems of facilities management” and “is concerned
with the planning, analysis, and improvement of
integrated facility control systems.” ECF No. 56-41 at 3.
In the 2016 rating year, Mr. Duri received an “acceptable”
rating on his annual performance plan and comments
related to areas of needed improvement. In the 2017
midyear-progress review, Mr. Duri’s rater expressed
concerns about Mr. Duri’s work quality, time spent away,
and time spent conducting personal business at work.
Later, Mr. Duri’s rater moved to a different position,
leaving a supervisor vacancy; and in July 2017, Mr. Duri’s
position was realigned to provide him with a facilities-
management supervisor. The new supervisor completed
Mr. Duri’s annual assessment on November 6, 2017, and
rated his overall performance as unacceptable. Decision,
2023 WL 3440813.
Mr. Duri disputed his 2017 rating and requested to be
transferred. After continued conversations and disputes
between Mr. Duri and his supervisor regarding Mr. Duri’s
assignments and unacceptable work performance,
Mr. Duri was given a Notification of Unacceptable
Performance and Opportunity to Improve Plan (“PIP”) on
April 13, 2018. Sixty days from issuance, the PIP required
Mr. Duri to complete Access database training courses;
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DURI v. NAVY 3
“produce an acceptable checklist to be used during . . .
inspections”; produce an Access database that is “up and
running” with incorporated checklists; conduct
“40 completed inspections per week”; and “keep [the
Director] and the Deputy Facilities Manager apprised of
any issues . . . identified and the corrective actions . . . to
take.” ECF No. 56-11 at 1–4 (PIP).1 After the PIP period,
the supervisor decided that Mr. Duri’s performance
warranted removal from federal service because he had
failed to (a) correctly use the checklists to conduct
inventories and complete the 40 inspections per week;
(b) complete additional Access training; (c) appropriately
format the inspection database; (d) properly utilize and
input data into an Access database; and (e) take action to
resolve identified discrepancies. ECF No. 56-6 at 1–3
(Proposed Removal from Federal Service). After a dispute
before the Equal Employment Opportunity Commission,
Mr. Duri filed an appeal to the MSPB challenging the
Office of Personnel Management’s approval of the agency’s
performance appraisal system, the communication and
validity of performance standards, whether there was a
reasonable opportunity to improve, and whether the
agency discriminated and retaliated against him. Though
untimely, the MSPB administrative judge (“AJ”) found that
good cause existed and referred the appeal to the Mediation
Appeals Program (“MAP”). The mediator released the
appeal from MAP without a settlement, and Mr. Duri
withdrew his request for a hearing. Based on the written
submissions, the AJ affirmed the agency’s removal action.
1 The parties dispute which day the PIP began.
ECF 53-2 at 20 (“Actually, the PIP started on April 18
. . . .”); id. at 24 (“But the PIP started on Monday, 16 April
. . . .”); ECF 42-1 at 7 (“The PIP started on April 15, 2018 .
. . .”).
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DURI v. NAVY 4
Because Mr. Duri did not petition for review with the
MSPB, the AJ’s decision became final on June 12, 2023.
Mr. Duri timely petitioned for review, and this court
has jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
In review of MSPB final decisions, we are required to
affirm the decision unless “any agency action, findings, or
conclusions [are] found to be—(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule,
or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). “The petitioner
bears the burden of establishing error in the [MSPB]’s
decision.” Harris v. Dep’t of Veterans Affs., 142 F.3d 1463,
1467 (Fed. Cir. 1998).
Mr. Duri argues that he should not have been
terminated because (1) the agency did not measure his
work as of PIP day 60 and proposed his removal before
training occurred; (2) the AJ dismissed evidence; and
(3) Mr. Duri’s performance plan’s critical element was
unachievable. We disagree and address each of Mr. Duri’s
arguments in turn.
I
We first address Mr. Duri’s argument that the agency
removed him without considering his work as of PIP
day 60. Specifically, Mr. Duri argues that the agency was
required to wait 60 days after issuing the PIP before re-
measuring his work and making a termination decision.
The AJ found that the “PIP was issued on April 13, 2018,
and scheduled for 60 days. It began on April 15, 2018, and
ended on June 13, 2018.” Decision, 2023 WL 3440813.
Mr. Duri, however, contends that the PIP started on
April 16, 2018, or alternatively, should have begun
April 18, 2018. ECF 53-2 at 20, 24.
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DURI v. NAVY 5
Even assuming that the PIP started on April 16 or 18,
2018, and ended on June 14 or 16, 2018, Mr. Duri has not
shown that he completed all of his required PIP objectives
by June 16. Indeed, he admits he did not complete the
required training program prescribed in the PIP.
Specifically, Mr. Duri concedes that “my failing to learn
Access on my own was one of the major justifications for
initiating the PIP and for proposing I be removed from NPS
employment. That was also one of the major reasons the
President agreed to remove me from employment.” Id.
at 15–16.
While Mr. Duri attempts to transform this failure to
complete the required training into an MSPB error, we
disagree the MSPB erred. See id. at 11 (alleging the AJ
“erroneously claimed [that Mr. Duri] should have looked for
outside training sources” but that Mr. Duri was not asked
or funded to do so). The AJ found that the “performance
plan told [Mr. Duri] what he needed to be trained in and
when to complete it.” Decision, 2023 WL 3440813.
Mr. Duri’s performance plan “included instructions to
procure training,” and “there was nothing improper with
including training as part of the performance plan.” Id.
The AJ found that Mr. Duri’s supervisor “adhered to the
policy by assessing the training needs, giving information
to [Mr. Duri], and directing him to arrange the details in a
manner that worked for him.” Id. And given that Mr. Duri
was a GS-11 professional, he “could reasonably be expected
to find and complete the exact course or courses to increase
his proficiency.” Id. The AJ also found that “there was a
significant amount of training available. Training in
Access was available to NPS employees in 2018 through
both online computer courses and outside contractors.
Online courses would have been sufficient to learn enough
to create simple or moderately complex databases.” Id.
(cleaned up).
Accordingly, the AJ found (and Mr. Duri admits) that
he did not complete the training as required by the PIP,
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DURI v. NAVY 6
whether by June 13, 14, or 16, 2018; and substantial
evidence supports the AJ’s findings that Mr. Duri did not
meet these PIP requirements.
II
We now turn to Mr. Duri’s argument that the AJ
dismissed some evidence during discovery. Specifically,
Mr. Duri alleges that “[t]he [a]gency failed to provide the
two binders” which contained his work. ECF 53-2 at 20–
21. But Mr. Duri does not argue or demonstrate how such
evidence would overcome the AJ’s factual determinations.
See Harris, 142 F.3d at 1467 (“The petitioner bears the
burden of establishing error in the [MSPB]’s decision.”).
Additionally, the AJ reviewed “in its entirety” a voluminous
record including nearly 5000 pages.2 Decision, 2023 WL
3440813, n.1. Without explanation of why these two
binders would overcome the evidence on record, we
conclude that substantial evidence supports the AJ’s
factual findings.
III
Finally, Mr. Duri argues that his performance plan’s
critical element was “ambiguous, ambitious, and
unachievable.” ECF 53-1 at 2; see also ECF 53-2 at 10 (“My
supervisor had established unachievable deadlines.”); id.
at 15; id. at 18. In Mr. Duri’s view, his “supervisor failed to
2 The AJ found the appeal file “voluminous,
including, by [his] calculations, an agency file of 1792
pages, agency close of record submissions of 987 pages, and
appellant close of record submissions of 2034
pages. Despite the volume, the record is highly
redundant. [The AJ] ha[s] reviewed the record in its
entirety.” Decision, 2023 WL 3440813, n.1 (citations
omitted).
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DURI v. NAVY 7
revise the unachievable . . . initial deadlines and failed [Mr.
Duri] for missing those deadlines.” ECF 53-1 at 2.
“[E]ach [agency] performance appraisal system shall
provide for—(1) establishing performance standards which
will . . . permit the accurate evaluation of job performance
on the basis of objective criteria”; (2) “communicating to
each employee the performance standards and the critical
elements of the employee’s position; (3) evaluating each
employee during the appraisal period on such standards;”
(4) “rewarding employees whose performance so warrants;
(5) assisting employees in improving unacceptable
performance; and (6) reassigning, reducing in grade, or
removing employees who continue to have unacceptable
performance but only after an opportunity to demonstrate
acceptable performance.” 5 U.S.C. § 4302(c).
Here, the AJ disagreed with Mr. Duri’s arguments and
found that the critical element of conducting “space
inventories is consistent with the appellant’s position
description. The position description provides that 40% of
the incumbent’s duties involve providing information to
management to make decisions on facilities allocations,
including executing ‘a detailed process for auditing space
utilization across campus’ and conducting ‘space
inventories of the academic facilities,’” with “[a]nother 40%
of the job involving investigating and evaluating space
allocation factors.” Decision, 2023 WL 3440813 (cleaned
up) (citing ECF No. 56-41 at 4). On the evidence of record,
the AJ found that the alleged ambiguity claimed by
Mr. Duri was persistent disagreement with the standards
of his supervisor’s instructions. “In context[,] it was
sufficiently clear what an inspection was, what a space
was, and what a database was,” and the AJ concluded that
“the standards were sufficiently objective.” Id.
Furthermore, the AJ found that “the standards established
in the PIP were realistic and attainable.” Id. Based on Mr.
Duri’s experience and his supervisor’s testimony, Mr. Duri
“should have been able to develop a checklist in eight
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DURI v. NAVY 8
hours, create a schedule in one hour, and do 10–20
inspections per day.” Id. Therefore, it would have been
“very reasonable” to complete 40 inspections per week,
given the duration of a single inspection to not take more
than 10–15 minutes. Id. Again, substantial evidence
supports the AJ’s findings.
CONCLUSION
We have considered Mr. Duri’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
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