Mosley v. United States Postal Service , 501 F. App'x 960 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
FREDERICK S. MOSLEY,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2012-3182
__________________________
Petition for review of the Merit Systems Protection
Board in No. AT0752110939-I-1.
___________________________
Decided: January 15, 2013
___________________________
FREDERICK S. MOSLEY, Panama City, Florida, pro se.
MICHAEL D. SNYDER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
DONALD E. KINNER, Assistant Director.
__________________________
MOSLEY v. USPS 2
Before NEWMAN, BRYSON, and O’MALLEY, Circuit Judges.
PER CURIAM.
DECISION
Frederick S. Mosley appeals the order of the Merit
System Protection Board affirming the decision of the
United States Postal Service to remove him from federal
employment. We affirm.
BACKGROUND
A Postal Service employee since 1986, Mr. Mosley had
been detailed to the Panama City, Florida, North Side
Station as a supervisor for customer service since May
2010. His employment was terminated following a De-
cember 2010 incident in which the Postal Service discov-
ered that Mr. Mosley had obtained and used a Publix gift
card, worth $25, that had been stored as undeliverable
accountable mail. The gift card had been left inside a
greeting card, which was placed on top of other greeting
cards in a padlocked cart. The other greeting cards
contained an Applebee’s gift card and a total of $55 in
cash, none of which was taken. On January 26, 2011, a
fellow Postal Service employee, preparing to send the
undeliverable mail to an Atlanta office, opened the greet-
ing card and noticed that the gift card was missing. The
key to the padlocked cart containing the undeliverable
accountable mail was widely known to be located in an
unlocked drawer in the office, which was accessible to
many Postal Service employees. The coworker reported
the lost gift card to Mr. Mosley, who told her to report the
incident to Mr. Mosley’s immediate supervisor.
The Postal Service’s Office of Inspector General
(“OIG”) commenced an investigation into the gift card’s
3 MOSLEY v. USPS
whereabouts. Using the Publix gift card receipt and a
surveillance videotape, an OIG investigator determined
that Mr. Mosley had cashed the gift card. When ques-
tioned, Mr. Mosley claimed the card had been left on the
supervisor’s desk, where he sat. He said that he assumed
the gift card was a gift from his subordinates. According
to the OIG investigator, Mr. Mosley initially claimed that
the gift card was inside a greeting card, and a sticky note
with his name was attached to it. Later in the same
interview, however, Mr. Mosley told investigators that he
found the greeting card, with the gift card inside, in a
white envelope with his name written in blue ink. When
confronted with the inconsistency in his statements, Mr.
Mosley denied that he had ever told the investigators that
the gift card was attached to a sticky note.
Mr. Mosley stated further that he displayed the greet-
ing card on the supervisor’s desk, along with another
greeting card containing a gift card from Home Depot that
he had received from coworkers. Mr. Mosley denied
knowing the Publix gift card’s value before he cashed it.
(The dollar amount was not printed on the card.) He also
stated that he had discussed the gift card with a fellow
supervisor who was temporarily stationed at the Panama
City facility, and he claimed that she had told him to keep
the gift card because it had his name on it.
The Postal Service issued a notice of proposed remov-
al based on charges that Mr. Mosley had engaged in
improper conduct and had made false statements to
investigators in the course of the investigation. The latter
charge contained three specifications: (1) falsely stating
that he had found the gift card on his desk; (2) falsely
stating that he had discussed whether to keep the card
with the temporary supervisor; and (3) falsely stating that
the coworker who discovered that the gift card was miss-
MOSLEY v. USPS 4
ing had not told him that the gift card had been stored in
the undeliverable accountable mail. The Postmaster
subsequently issued a decision sustaining both charges
and removing Mr. Mosley from his position. Mr. Mosley
later pleaded no contest to a charge of petit theft of the
gift card and was sentenced to six months’ probation and
a fine. He appealed the Postmaster’s decision to the
Board.
During a hearing before a Board administrative
judge, the OIG investigator testified about Mr. Mosley’s
inconsistent statements with respect to how he found the
gift card. The temporary supervisor who shared the
supervisor’s desk with Mr. Mosley also testified that she
had not seen the Publix gift card displayed on the desk
but that she recalled seeing the Home Depot gift card.
The station manager at the office also testified that he
never saw the card displayed on the supervisor’s desk.
The administrative judge found the testimony of the
OIG investigator, the station manager, and the temporary
supervisor to be credible and found that there was no
evidence any Postal Service employee had a bias against
Mr. Mosley or any reason to trick him into using the gift
card. Moreover, the administrative judge found that even
if Mr. Mosley had received the gift card from subordi-
nates, his acceptance of the card was improper because it
exceeded $10 in value and thus he could not accept it
under Postal Service ethics rules. Although the card’s
value was not printed on it, the administrative judge
stated that it was Mr. Mosley’s responsibility to deter-
mine the value of any gift before accepting it. The admin-
istrative judge also found that Mr. Mosley’s explanation
for how he acquired the gift card was not credible, and
that his demeanor during his testimony was evasive. The
administrative judge concluded that Mr. Mosley had
5 MOSLEY v. USPS
made false statements with the intent to deceive investi-
gators and the Postal Service. Therefore, the administra-
tive judge sustained the charge of improper conduct and
the first two false statement specifications. However, the
administrative judge found the evidence insufficient to
prove the third specification, charging Mr. Mosley with
making a false statement when he denied being told that
the gift card had been in the undeliverable accountable
mail.
The administrative judge further held that removal
was a permissible sanction because Mr. Mosley’s false
statements implicated his duties as a supervisor and had
an adverse impact on the Postal Service’s mission. He
found that Mr. Mosley had made false statements con-
cerning how he had acquired property that had been
entrusted to the Postal Service’s care, and that this mis-
conduct threatened the integrity of the mail system. The
administrative judge also found that Mr. Mosley’s offense
was serious, that the Postal Service had lost trust in him
due to his false statements, and that he displayed no
remorse. On Mr. Mosley’s petition for review, the full
Board noted that the Board had “long viewed any miscon-
duct involving interference with the mail as going directly
to the heart of the Postal Service’s mission,” and that
there was no basis to disturb the administrative judge’s
finding that the penalty of removal was within the tolera-
ble limits of reasonableness. Mr. Mosley now appeals to
this court.
DISCUSSION
Mr. Mosley first challenges the sufficiency of the
Postal Service’s evidence against him. In cases in which
the petitioner argues that the evidence on which the
Board relied was insufficient, we are required to uphold
MOSLEY v. USPS 6
the Board’s decision if it is supported by “substantial
evidence,” i.e., the amount of evidence that a reasonable
person “‘might accept as adequate to support a conclu-
sion.’” Haebe v. Dep’t of Justice, 288 F.3d 1288, 1298
(Fed. Cir. 2002), quoting Brewer v. United States Postal
Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981); see 5 U.S.C. §
7703(c)(3).
Applying that standard, we hold that substantial evi-
dence supports the Board’s decision. First, Mr. Mosley
was discovered to have possessed and used the gift card.
Second, the administrative judge found that his explana-
tion of how he obtained the gift card was not credible.
Third, the OIG investigator testified that Mr. Mosley had
changed his story concerning how he acquired the gift
card, and the Board credited that testimony. The Board
also credited the testimony of the temporary supervisor
and the station manager, which contradicted Mr. Mosley’s
claim that he displayed a greeting card that supposedly
contained the Publix gift card, or that he was assured
that he could keep the gift card because it had his name
on it. Credibility judgments are entrusted to the Board’s
discretion. Haebe, 288 F.3d at 1298-1302; Jackson v.
Veterans Admin., 768 F.2d 1325, 1332 (Fed. Cir. 1985).
The administrative judge’s credibility findings were
sufficient to sustain both charges, especially because Mr.
Mosley failed to produce any witness who recalled seeing
the card displayed on the supervisor’s desk. In the alter-
native, the evidence supports the administrative judge’s
finding that, even if Mr. Mosley did not personally take
the gift card from the undeliverable accountable mail, he
at least received a gift in an amount exceeding $10 with-
out ascertaining its value, and then made false state-
ments to investigators regarding how he had obtained an
item from the mail that had been entrusted to the Postal
Service.
7 MOSLEY v. USPS
Before this court, Mr. Mosley repeats the same ver-
sion of events that the administrative judge found not to
be credible. He argues that the employee in charge of the
undeliverable accountable mail was responsible for keep-
ing track of the gift card on a daily basis but did not
discover that it was missing until January 26. Because
the gift card was cashed on January 8, Mr. Mosley argues
that he was accused of wrongdoing to conceal the fact that
the Postal Service lost track of the gift card for at least 18
days (and, by his account, since the December holidays).
His accusations, however, fail to address how he obtained
the gift card in the first place, and in particular why any
employee would have taken it from the undeliverable
accountable mail and then presented it to him as a holi-
day gift.
Mr. Mosley also states that the OIG investigators took
no notes during his interview, and he denies changing his
story regarding whether the gift card was in an envelope
or attached to a sticky note. The administrative judge
credited the testifying OIG investigator’s account of the
interview, however, and Mr. Mosley does not explain why
the OIG would falsely or mistakenly claim he had
changed his story. Importantly, the investigators con-
fronted Mr. Mosley with the inconsistency in his state-
ments as soon as he made them. The investigators’
memory was therefore fresh, and their reaction presuma-
bly well founded.
Mr. Mosley also notes that the undeliverable account-
able mail included $55 in cash that was not stolen. He
asserts that he would not have stolen the gift card but left
the currency, which would have been untraceable. How-
ever, the Publix gift card was at the top of the pile in the
cart that stored the undeliverable accountable mail. The
other valuable items were contained within separate gift
MOSLEY v. USPS 8
cards. It is reasonable to suppose that someone taking
the Publix card may not have looked inside the other
cards, or might have feared that two missing items would
be more readily noticed. And even if Mr. Mosley simply
found the gift card on his desk, he does not explain why
he was justified in accepting such a gift under the Postal
Service’s ethics rules. In sum, Mr. Mosley’s contentions
as to the flaws in the case against him cannot overcome
the Board’s credibility determinations, the undisputed
fact that he possessed and used the card, and his inability
to offer evidence tending to exonerate him.
Mr. Mosley also argues that removal is too harsh a
penalty for his offenses. We have consistently held that
determining the appropriate penalty for an employee’s
misconduct “‘is a matter committed primarily to the sound
discretion of the employing agency.’” Beard v. Gen. Servs.
Admin., 801 F.2d 1318, 1322 (Fed. Cir. 1986), quoting
Hunt v. Dep’t of Health and Human Servs., 758 F.2d 608,
611 (Fed. Cir. 1985). We reverse a decision of the Board
upholding an agency's penalty decision only if the penalty
“exceeds the range of permissible punishment or is ‘so
harsh and unconscionably disproportionate to the offense
that it amounts to an abuse of discretion.’” Gonzales v.
Def. Logistics Agency, 772 F.2d 887, 889 (Fed. Cir. 1985),
quoting Villela v. Dep't of the Air Force, 727 F.2d 1574,
1576 (Fed. Cir. 1984). Mr. Mosley has not satisfied that
exacting standard in this case.
Mr. Mosley points out that the gift card had a value of
only $25, that he had served for more than 25 years in the
Postal Service with a largely unblemished record, and
that he is a veteran. Mr. Mosley cannot benefit from the
small value of the card, however, because he admits that
he did not know the card’s value until he used it in Janu-
ary. The administrative judge noted the length of Mr.
9 MOSLEY v. USPS
Mosley’s career in the Postal Service but determined that
the threat his conduct posed to the integrity of the mail,
along with his lack of remorse and the Postal Service’s
loss of trust in him, justified removal. Under these cir-
cumstances, we conclude that the Board did not abuse its
discretion in finding that this misconduct reasonably
warranted separation.
No costs.
AFFIRMED