Case: 22-1170 Document: 79 Page: 1 Filed: 12/08/2022
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`NOTE: This disposition is nonprecedential.
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`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.
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`

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`Case: 22-1170 Document: 79 Page: 2 Filed: 12/08/2022
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`PARRISH v. HHS
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`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.
`
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`“SAppx.” citations herein refer to the appendix
`1
`filed concurrently with Respondent’s brief. “Appx.” cita-
`tions refer to the appendix filed concurrently with Peti-
`tioner’s brief.
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`Case: 22-1170 Document: 79 Page: 3 Filed: 12/08/2022
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`PARRISH v. HHS
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`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
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`PARRISH v. HHS
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`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
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`Case: 22-1170 Document: 79 Page: 5 Filed: 12/08/2022
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`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
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`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
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`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
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`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.”
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`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.
`
`