John W. Camery, Petitioner, v. Department of Defense, Respondent, 835 F.2d 871 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 835 F.2d 871 (Fed. Cir. 1987) Nov. 13, 1987

Before RICH, DAVIS and ARCHER, Circuit Judges.

ARCHER, Circuit Judge.


DECISION

The decision of the Merit Systems Protection Board (MSPB or board), Docket No. DC04328610436, sustaining petitioner's removal from his position as a mathematician, computer graphics coordinator, GS-13, with the Defense Communications Agency for unacceptable performance is affirmed.

OPINION

The scope of review of decisions of the Merit Systems Protection Board is narrowly defined by statute. The board's decision must be affirmed unless it is 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); Covington v. Department of Health and Human Services, 750 F.2d 937, 941 (Fed. Cir. 1984).

Petitioner contends that under 5 U.S.C. § 4302 an employee may be removed "only after an opportunity to demonstrate acceptable performance" and that he was denied such an opportunity. The MSPB, however, found that petitioner was afforded a reasonable opportunity to improve and that his failures were "due to his own lack of initiative." It further found that petitioner was given notice that his performance during the improvement period and yet his performance did not improve. Moreover, petitioner did not dispute that he failed to complete his assignments to the satisfaction of the agency.

The board's decision was supported by substantial evidence and we affirm on the basis of the opinion of the administrative judge.