White v. United States Postal Service ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JERRY WHITE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2010-3057
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. CH0752080426-I-2.
____________________________
Decided: June 14, 2010
____________________________
JERRY WHITE, of Bolingbrook, Illinois, pro se.
EUGENIA IZMAYLOVA, Attorney, Civil Practice Section,
United States Postal Service, Law Department, of Wash-
ington, DC, for respondent. With her on the brief were
TONY WEST, Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, and LORI DYM, Chief
Counsel, Law Department, Office of Labor Law, United
WHITE v. USPS 2
States Postal Service, of Washington, DC. Of counsel was
SCOTT A. MACGRIFF, Trial Attorney.
__________________________
Before RADER, Chief Judge, PLAGER and LOURIE, Circuit
Judges.
PER CURIAM.
Petitioner Jerry White (“White”) appeals from the fi-
nal order of the Merit Systems Protection Board (“the
Board”) upholding his removal for eight separate inci-
dents of accepting pay for time not worked. We affirm.
BACKGROUND
White was employed by the United States Postal Ser-
vice from December 11, 1993, until his removal on Febru-
ary 26, 2008. White was promoted to supervisor in 1998
and in 1999 to Manager of the Computer Forwarding
System (“CFS”) unit within the South Suburban Process-
ing and Distribution Center (“South Suburban P&DC”) in
Bedford Park, Illinois. In mid-2006, the Postal Service’s
Office of the Inspector General (“OIG”) commenced an
investigation into allegations that employees at the South
Suburban P&DC were entering inaccurate information
into the Postal Service’s Time and Attendance Collection
System (“TACS”). A review of time records from January
through June 2006 led OIG to further investigate three
CFS unit supervisors, including White, who had received
an inordinate amount of overtime compensation due to
TACS entries in excess of their daily authorized eight-
hour schedule.
From August 19 to November 3, 2006, OIG agents
tracked White’s arrival and departure times from the CFS
3 WHITE v. USPS
unit. On eight separate days in September 2006, White
was absent from the CFS unit for long periods of time
while still on the clock. For example, on September 21,
2006, White accepted compensation for working approxi-
mately ten hours based on TACS recording an arrival
time of 11:58 a.m. and a departure time of 10:31 p.m. The
surveillance records, however, show that White left the
CFS unit at around 2:31 p.m. and that he did not return
until 6:41 p.m. Consequently, White was away from the
unit while being paid for four hours and ten minutes.
Similar paid absences of between three to five hours
occurred on September 22, 24, 25, 26, 27, 28, and 29.
On February 9, 2007, OIG Special Agent Ramona
Parker prepared a Report of Investigation, which found,
inter alia, that White had misappropriated Postal funds
through the misuse of the TACS. The Report concluded
that White had been paid $7,557.64 for 251.51 extra
hours between August 19 and November 3, 2006, and on
forty-three occasions during that period, including the
eight specific dates in September listed above, White had
been paid for time when he was out of the CFS unit for
between two to six hours. The OIG Report was sent to
Patrick Kavanaugh, White’s supervisor, who conducted a
pre-disciplinary interview with White on March 2, 2007.
When questioned about his whereabouts on the eight
specific September 2006 dates, White could not offer any
explanation. White requested access to his office to see if
his personal notes could help him recall. Yet, when given
the opportunity to obtain his notes on April 3, 2007,
White failed to produce any information indicating his
whereabouts. White then requested access to his e-mails
but was told that OIG had confiscated his computer.
On September 6, 2007, Kavanaugh issued White a
Notice of Proposed Removal, charging him with accepting
WHITE v. USPS 4
pay for time not worked. The charge was supported by
eight specifications corresponding to the eight September
dates, and it identified specific sections of the Supervisor’s
Guide to Scheduling and Premium Pay and the Postal
Service’s Employee and Labor Relations Manual that
White had violated. The Notice also informed White of
his right to meet with Lolita Rice, the Manager of Post
Office Operations and deciding officer, or to respond to
the charge in writing.
On February 22, 2008, Rice issued a Letter of Deci-
sion upholding the charge and the penalty of removal.
Rice explained that the evidence showed that White was
in fact absent from the CFS unit during the dates and
times alleged in the Notice of Proposed Removal and that
when given an opportunity to explain his whereabouts,
White produced no evidence that showed he was working.
As for the penalty, Rice concluded that given White’s
disregard for the Postal Service’s rules and regulations,
White’s misguided attempts to rationalize his actions, and
his unwillingness to recognize his wrongdoing, she had no
trust in White as an employee and that removal would
promote the efficiency of the service. In reaching this
conclusion, Rice relied on the seriousness of the offense,
White’s position as a manager with duties to enforce the
same policies he had violated, his lack of remorse, and his
refusal to accept any kind of responsibility for his actions.
Rice also considered White’s prior fifteen years with the
Postal Service with no past disciplinary history but de-
termined removal was still the appropriate penalty.
Accordingly, Rice upheld White’s removal effective Febru-
ary 26, 2008.
White appealed his removal to the Board. After dis-
covery, the administrative judge (“AJ”), without apparent
objection from either party, accepted into evidence all
5 WHITE v. USPS
documents submitted by the parties and permitted White
to call five of his ten proposed witnesses. The AJ con-
ducted a hearing on July 30, 2009.
On August 3, 2009, the AJ issued an Initial Decision
affirming the agency’s removal of White for accepting
compensation for time not worked. The AJ, noting that
White did not dispute his absences, credited Special
Agent Parker’s testimony regarding White’s absences
from the unit as supported by documentary evidence. The
AJ then rejected as not credible White’s main defense,
that he was interviewing applicants for temporary em-
ployment or for the Postal Service’s Postal Automation
Redirection System (“PARS”) program. Rather, the AJ
credited the testimony of Kavanaugh and Rice, who
stated that White was not authorized to hire temporary
employees in September 2006; the testimony of White’s
witness Bob Erxleben, a Customer Service Analyst, who
testified that the PARS program was not run by CFS; and
the testimony of Steven Schneider, White’s then supervi-
sor, who testified that White had no reason to leave the
CFS unit to do any PARS-related work. The AJ also
relied on White’s inability to name any applicants that he
interviewed or to produce any application forms.
The AJ also rejected White’s contention that if he had
been allowed to review his e-mail messages he may have
been able to remember what he had been doing on the
dates in question. The AJ found that White had not
indicated what types of e-mails would help him explain
his absences and, given the significant length of his
absences, White likely would have remembered what he
was doing without reviewing any e-mail messages.
Having found by the preponderance of the evidence
that White accepted pay for time not worked, the AJ then
WHITE v. USPS 6
reviewed the agency’s penalty of removal. The AJ relied
on Rice’s testimony that White’s misconduct was serious
in nature, that she could no longer trust White, and that
he refused to take responsibility for his conduct. The AJ
also relied on evidence that White’s misconduct was
notorious in nature, citing a letter addressed to Rice and
seven other individuals from “CFS Clerks” dated October
26, 2006, complaining that White left work several hours
each day. The AJ concluded that Rice had reasonably
weighed the pertinent factors in reaching her decision to
remove White, including taking into account White’s
years of employment with no past disciplinary history,
and thus affirmed the agency’s choice of penalty.
On October 27, 2009, the full Board denied White’s
Petition for Review, making the AJ’s decision the final
decision of the Board. White appealed to this court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5
U.S.C. § 7703(b)(1).
DISCUSSION
We must affirm a Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c).
In his informal brief, White argues for the first time
that the Postal Service intentionally discriminated
against him based on his race and gender. Specifically,
White alleges that the agency punished him—a black
male—more harshly for the same conduct than another
individual who is white and female. White asserts that
he did not become aware of the discrimination until July
7 WHITE v. USPS
20, 2009, a day prior to the Board proceedings, and thus
too late to include in his original complaint.
This claim cannot be brought in the court for two rea-
sons. First, this court does not have jurisdiction over
discrimination claims under § 7703(b)(1), even in “mixed
cases.” Williams v. Dep’t of the Army, 715 F.2d 1485,
1491 (Fed. Cir. 1983) (en banc). Second, White failed to
raise his discrimination claim before the Board, and “[o]ur
precedent clearly establishes the impropriety of seeking a
reversal of the board’s decision on the basis of assertions
never presented to the presiding official or to the board.”
Oshiver v. Office of Personnel Mgmt., 896 F.2d 540, 542
(Fed. Cir. 1990) (quoting Rockwell v. Dep’t of Transp., 789
F.2d 908, 913 (Fed. Cir. 1986)).
White does, however, include at Tab C of his petition
a section titled “Informal Brief” in which he advances
several arguments, also for the first time, related to those
addressed by the Board. In light of White’s pro se status,
we will consider the arguments White raises in this
section on appeal. White first argues that the evidence
does not support the Board’s finding that White engaged
in the charged conduct. Specifically, White asserts that
the Board erred in assuming that when he was absent
from the CFS unit he was out of the building and not
working rather than meeting with other supervisors on
the second floor or with new hires and interviewees on the
workroom floor. According to White, Rice and Kavanaugh
lied when they testified that White did not have authority
to hire temporary employees in September 2006 and
Schneider failed to appreciate that the PARS program
required him to attend meetings outside the CFS unit
between the hours of 9:00 a.m. and 5:00 p.m. Finally,
White asserts that he would have been able to account for
WHITE v. USPS 8
his absences from the CFS unit if he had been permitted
to review his e-mail messages on his work computer.
The government responds that substantial evidence
supports the Board’s finding that White engaged in the
charge of accepting pay for time not worked. We agree.
White does not dispute that he was away from the CFS
unit on the dates and at the times charged. Rather he
argues that the Board erred in not believing his excuses
for being away from the unit—mainly interviewing appli-
cants and attending PARS meetings—over the testimony
of multiple witnesses that White was not authorized to
hire temporary employees and that, to the extent that the
CFS unit was involved in PARS, there was no need for
White to leave the unit to participate. White points to no
documentary evidence (including possible work-related e-
mails) that corroborate his version of events or his asser-
tions that other witnesses were being untruthful. We
first note that White failed to provide this court with a
transcript of the testimony on which he relies. See Fed.
R. App. R. 10(b) (“If the appellant intends to urge on
appeal that a finding or conclusion is unsupported by the
evidence or is contrary to the evidence, the appellant
must include in the record a transcript of all evidence
relevant to that finding or conclusion.”). But more impor-
tantly, the Board’s decision rests in substantial part on
credibility determinations, and as an appellate court, we
cannot re-evaluate credibility determinations when, as
here, they are not inherently improbable or discredited by
undisputed fact. Pope v. United States Postal Serv., 114
F.3d 1144, 1149 (Fed. Cir. 1997).
White also appears to challenge the Board’s affir-
mance of the penalty of removal, which White suggests
was too harsh. He argues that Rice, as his supervisor,
should have evaluated his performance daily and should
9 WHITE v. USPS
have indicated to him any problems in his job perform-
ance.
The government responds that the Board did not
abuse its discretion in sustaining White’s removal, argu-
ing that it strains credibility that given White’s status as
a manager he needed to be told on a daily basis to actu-
ally be at work and perform his assigned duties. The
government also contends that White offers no authority
to support any contention that he should have been given
progressive discipline and that this court has repeatedly
upheld a penalty of removal for analogous conduct.
Again we agree with the government that the Board
did not err in upholding the agency’s penalty of removal.
The choice of penalty is committed to the sound discretion
of the employing agency; it will not be overturned unless
the penalty is wholly unwarranted in light of the relevant
factors set forth in Douglas v. Veterans Administration, 5
M.S.P.R. 280, 305-06 (1981). Guise v. Dep’t of Justice, 330
F.3d 1376, 1382 (Fed. Cir. 2003). In this case, the agency
considered the Douglas factors in determining that re-
moval was the appropriate remedy, including the nature
and seriousness of the offense, White’s status as a man-
ager, White’s fifteen years of service and lack of a disci-
plinary record, the effect of the offense on his ability to
perform his job satisfactorily, the effect on his supervi-
sor’s confidence in his ability to perform his assigned
duties, the potential for rehabilitation, and White’s lack of
remorse and refusal to take personal responsibility. In
view of the agency’s reasoned consideration of those
factors, we see nothing unwarranted or disproportionate
in the penalty of removal.
Lastly, White argues that the AJ abused its discretion
in excluding the testimony of certain of White’s proffered
WHITE v. USPS 10
witnesses and in excluding certain documentary evidence.
Like the government, we see nothing in the record to
indicate that White objected to the exclusion of his wit-
nesses while the case was before the AJ. But regardless,
it is evident from the description of their proposed testi-
mony that their testimony would have been either cumu-
lative or irrelevant. For example, White challenges the
exclusion of Michael Clifford, Acting Labor Relations
Specialist, who would have testified that White was not
given access to his computer. Since no one disputes that
White was not given access to his computer, such testi-
mony was unnecessary. Similarly, White challenges the
exclusion of Jewel Marshall, a CFS unit supervisor, who
would have testified to the CFS unit’s improved perform-
ance under White’s leadership and the need for overtime
during September 2006. But White was not removed for
failing to adequately manage the CFS unit or for working
overtime, but rather for accepting compensation for time
that he did not work. As such, this testimony was irrele-
vant to the charge at issue.
Finally, the allegation that the AJ improperly ex-
cluded certain documentary evidence contradicts the AJ’s
pre-hearing order, which accepted all the parties’ exhibits
into the record. Moreover, it appears that the only docu-
ment not part of the record below was a Performance
Evaluation of White for the year beginning October 1,
2004, and ending September 30, 2005. Again, because
White was not removed for failure to adequately manage
the CFS unit, but for accepting compensation for time
that he did not work, had the AJ in fact excluded White’s
Performance Evaluation, it would not have been an abuse
of discretion.
Accordingly, we affirm the Board’s decision.
11 WHITE v. USPS
AFFIRMED
COSTS
No costs.