Edwards v. United States Postal Service , 662 F. App'x 951 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CYRIL L. EDWARDS,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
______________________
2016-1667
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-15-0030-I-1.
______________________
Decided: October 12, 2016
______________________
CYRIL L. EDWARDS, Rochester, NY, pro se.
TANYA B. KOENIG, Commercial Litigation Branch, Civ-
il Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., BRIAN A.
MIZOGUCHI; MORGAN E. REHRIG, Office of General Coun-
sel, United States Postal Service, Washington, DC.
______________________
2 EDWARDS v. USPS
Before PROST, Chief Judge, WALLACH and CHEN, Circuit
Judges.
PER CURIAM.
Cyril Edwards appeals the final decision of the Merit
Systems Protection Board (“MSPB”), which affirmed an
administrative judge’s (“AJ”) initial decision to uphold the
U.S. Postal Service’s (“USPS”) demotion of Mr. Edwards
for improper conduct. Edwards v. U.S. Postal Serv., No.
NY-0752-15-0030-I-1 (M.S.P.B. Jan. 5, 2016) (Resp’t’s
App’x 8–22). After the parties completed briefing in this
appeal, the Government filed a motion notifying this court
of subsequent developments related to the penalty im-
posed upon Mr. Edwards. See Resp’t’s Mot. for Leave to
File Addendum. Because these developments necessarily
inform whether the USPS imposed an appropriate penal-
ty on Mr. Edwards, we vacate the MSPB’s decision and
remand with instructions to make further factual findings
in the first instance.
BACKGROUND
I. Relevant Facts and Proceedings Before the MSPB
Mr. Edwards was employed by the USPS as Supervi-
sor of Maintenance Operations in the Rochester Pro-
cessing and Distribution Center in Rochester, NY. On
March 17, 2014, Mr. Edwards reported to work for an
eight hour shift and found that there was no work for him
following a scheduling error. Mr. Edwards’s supervisors
told him he could leave before his shift ended, and he left
after one and a half hours on duty. Mr. Edwards did not
submit a form requesting leave and later told the acting
supervisor overseeing attendance to credit him with eight
hours of work for March 17, 2014.
The USPS shortly thereafter began investigating Mr.
Edwards’s actions, and a pre-disciplinary interview was
held on April 9, 2014. The USPS determined that Mr.
Edwards should not have received credit for time worked
EDWARDS v. USPS 3
when he left on March 17 and charged him with improper
conduct, proposing as punishment a reduction in grade
and pay.
Following an oral hearing, a deciding official (“DO”) at
the USPS issued a decision letter upholding the USPS’s
proposed reduction in grade and pay as a result of Mr.
Edwards’s improper conduct. Resp’t’s App’x 110. The DO
determined that, inter alia, Mr. Edwards’s supervisory
status weighed heavily against him in determining an
appropriate sanction and that he “[could not] be trusted to
ensure accurate time keeping practices for a group of
subordinate employees if [he could not] be trusted with
[his] own time keeping responsibilities.” Id. at 114.
Mr. Edwards subsequently petitioned the MSPB for
review. An AJ affirmed the DO’s decision and found that
the USPS proved by a preponderance of evidence that Mr.
Edwards engaged in improper conduct and that the
penalty of a reduction in grade and pay promoted the
efficiency of the service, as required under 5 U.S.C.
§ 7513(a) (2012). 1 Id. at 38. The AJ also found that the
USPS demonstrated that the penalty imposed was appro-
priate in light of the twelve factors set forth in Douglas v.
Veterans Administration, 5 M.S.P.B. 313, 331–32 (1981).
Id. In so doing, the AJ rejected Mr. Edwards’s claims that
he received disparate treatment relative to three other
employees who received only Letters of Warning or no
penalty. Id. at 36. The AJ instead relied upon the penal-
ty imposed on Ms. Robin Swan, Mr. Edwards’s supervisor
who similarly received a reduction in grade and pay for
1 Section 7513(a) provides that “an agency may take
an action . . . against an employee only for such cause as
will promote the efficiency of the service.” 5 U.S.C.
§ 7513(a).
4 EDWARDS v. USPS
leaving an eight hour shift without working four hours, 2
in assessing the appropriateness of the penalty imposed
on Mr. Edwards. Id. at 37.
Mr. Edwards appealed the AJ’s initial decision to the
full MSPB, which affirmed the AJ’s decision. See id. at
22. The MSPB modified the initial decision with respect
to its findings on whether Mr. Edwards was subject to a
disparate penalty, citing different reasons to support the
ultimate conclusion that none of the three comparators
proffered by Mr. Edwards were relevant. Id. at 16. The
MSPB also rejected Mr. Edwards’s assertion that the AJ
improperly considered Ms. Swan as the sole relevant
comparator. Id. at 17.
Mr. Edwards timely petitioned this court for review.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9)
(2012).
II. Developments on Appeal
While briefing remained ongoing in this appeal, the
MSPB mitigated Ms. Swan’s penalty from reduction in
grade and pay to a thirty day suspension, finding that the
penalty of demotion “exceed[ed] the tolerable limits of
reasonableness.” Swan v. U.S. Postal Serv., No. NY-0752-
15-0020-I-1 (M.S.P.B. June 7, 2016) (Resp’t’s Addendum
13). The Government later filed a Motion for Leave to
File an Addendum including Swan “in an effort at fair-
ness in this pro se case.” Resp’t’s Mot. for Leave to File
Addendum 1. Both parties discuss Swan in their briefs.
See Resp’t’s Br. 18; Pet’r’s Reply 1.
2 Section H.2b of the USPS’s Handbook F-401, Su-
pervisor’s Guide to Scheduling and Premium Pay (Aug.
2000) states: “Nonbargaining exempt employees who
intend to be absent for more than 4 hours on a workday
should request a full day of leave.” Resp’t’s App’x 127.
EDWARDS v. USPS 5
DISCUSSION
Mr. Edwards alleges that the MSPB committed vari-
ous legal and factual errors when it upheld the USPS’s
decision to reduce his grade and pay. See Pet’r’s Br. 7–27.
As an initial matter, however, we first must address
whether the MSPB’s recent decision in Swan necessitates
a remand in the instant appeal. We find that it does.
We generally will not review extra-record evidence not
presented to the MSPB. See Wilkes v. Dep’t of Veterans
Affairs, 644 F. App’x 1015, 1019–20 (Fed. Cir. 2016)
(Wallach, J., concurring); see also Oshiver v. Office of Pers.
Mgmt., 896 F.2d 540, 542 (Fed. Cir. 1990); Resp’t’s Br. 18
n.3 (“Although we recognize that this [c]ourt does not
generally review evidence which was not presented to the
[MSPB] . . . we include as an addendum the MSPB’s
initial decision for Manager Swan . . . .”). However, when
factual information necessary to a final decision was
unavailable during the administrative proceeding and
later becomes available or changes while on appeal, we
have found it appropriate to vacate and remand the
administrative decision under review. See, e.g., Williams
v. Soc. Sec. Admin., 586 F.3d 1365, 1368–69 (Fed. Cir.
2009) (vacating and remanding to the MSPB following
Government counsel’s admission of new evidence related
to potential disparate treatment of a comparator that was
not on record); Gregory v. U.S. Postal Serv., 30 F. App’x
955, 957–58 (Fed. Cir. 2002) (remanding to the MSPB
after a grievance pending at the time of the initial deci-
sion was decided in appellant’s favor such that “further
assessment of the correct penalty” was warranted).
A remand is appropriate in the instant appeal because
the MSPB necessarily must consider Swan to ascertain
the appropriateness of the penalty imposed upon Mr.
Edwards. In Douglas, the MSPB set forth the relevant
factors to consider when assessing the appropriateness of
a penalty in an administrative proceeding related to
6 EDWARDS v. USPS
adverse employment action. See 5 M.S.P.B. at 331–32.
One of those factors asks the DO to consider the “con-
sistency of the penalty with those imposed upon other
employees for the same or similar offenses.” Id. at 332.
The MSPB has recognized that this factor “is of sufficient
weight that it may warrant an outcome different from
that of the initial decision.” Lewis v. Dep’t of Veterans
Affairs, 2009 M.S.P.B. 96, ¶ 8 (2009). In particular, the
MSPB has stated that, in the case of alleged disparate
treatment between comparable employees, “the agency
must prove a legitimate reason for the difference in
treatment by a preponderance of the evidence.” Id. We
agree and therefore remand so that the MSPB may reas-
sess Mr. Edwards’s penalty in light of Swan.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons,
the decision of the Merit Systems Protection Board is
VACATED AND REMANDED