Harold Grant v. United States Postal Service ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAROLD J. GRANT, DOCKET NUMBER
Appellant, NY-0752-15-0234-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 28, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Harold J. Grant, Bronx, New York, pro se.
Anthony V. Merlino, Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 2 5 C.F.R. § 1201.113(b).
¶2 Effective June 6, 2015, the agency removed the appellant, a
preference-eligible Letter Carrier, based on three charges: (1) absence without
leave beginning on May 20, 2014; (2) conduct unbecoming a Postal employee
based on his having submitted a fraudulent medical document to support an
absence; and (3) failure to follow instructions—four specifications wherein the
agency alleged that the appellant failed to report for duty or provide supporting
documentation for his absence as directed on July 18, 2014—and failed to report
for a Pre-Disciplinary interview as directed on August 19, September 13, and
December 18, 2014. Initial Appeal File (IAF), Tab 8 at 12-15, 18-22. The
appellant challenged the action on appeal, IAF, Tab 1, and alleged that the agency
committed harmful procedural error when it accessed his medical information as
part of the investigation it conducted into charge (2), IAF, Tab 14. The appellant
requested a hearing. IAF, Tab 1 at 2.
2
The appellant also filed a motion for leave to file additional pleadings. Petition for
Review File, Tab 6 at 2. In this motion, the appellant is seeking leave to submit “new
medical information.” Although the information he seeks leave to submit may be new,
he has failed to explain how the “new medical information” would warrant an outcome
different from that of the initial decision. Accordingly, the appellant’s motion for leave
to submit additional evidence is denied.
3
¶3 Thereafter, the administrative judge issued an initial decision affirming the
agency’s action. IAF, Tab 24, Initial Decision (ID) at 1, 20. Regarding
charge (1), she found, based on the agency’s documentation and the hearing
testimony of the Manager, Customer Service, the Area Manager, and the
appellant’s Supervisor, and the appellant’s failure to refute that evidence or
present any contrary evidence, that he was absent without authorization since at
least May 20, 2014. ID at 6. The administrative judge further found that, while
the appellant did submit leave requests covering several days of the time he was
absent, the agency fairly denied those requests as not properly submitted and that,
other than the appellant’s unsubstantiated claim that the agency lost the medical
documentation he submitted, there was no evidence to show that he requested
leave for the remainder of the time charged. ID at 6 -8. Accordingly, the
administrative judge found charge (1) sustained. See Savage v. Department of the
Army, 122 M.S.P.R. 612, ¶ 28, n.5 (2015), overruled in part by Pridgen v. Office
of Management and Budget, 2022 MSPB 31, ¶¶ 23-25.
¶4 The administrative judge analyzed charge (2), the “conduct unbecoming”
charge, as a charge of falsification. See Canada v. Department of Homeland
Security, 113 M.S.P.R. 509, ¶ 9 (2010); ID at 8-10. She considered the results of
the report of investigation that included interviews with, and sworn statements of,
the clinic administrator and the medical professional whose name appeared on the
medical note the appellant submitted, along with testimony of the Special Agent
who conducted the investigation and the Manager, Customer Service. The
administrative judge found that, in support of a leave request, the appellant
submitted incorrect information relating to his alleged treatment by a medical
professional at a clinic on May 12, 2014, 3 ID at 10-12, that the incorrect
3
The administrative judge found, based on the record evidence, that the appellant was
seen twice at the clinic by an optometrist in 2007, not 2012, as the note indicated, that
the individual who allegedly signed the medical note worked there, but as a Physician’s
Assistant in the Dermatology Department, and so would not likely have given a
4
information coupled with a lack of any credible explanation or contrary action on
the appellant’s part constituted circumstantial evidence that he intended to
deceive the agency, O’Lague v. Department of Veterans Affairs, 123 M.S.P.R.
340, ¶ 6 (2016), aff’d per curiam, 698 F. App’x 1034 (Fed. Cir. 2017); ID
at 12-13, and that, in doing so, he was seeking private material gain, that is, being
paid for leave to which he was not entitled, such that the falsification charge was
sustained, Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 13
(2014); ID at 13.
¶5 Regarding charge (3), the administrative judge found that all four
specifications were supported by documentary evidence showing that the
appellant received three of the letters and that, although the fourth was refused , it
was sent by certified mail, as well as by testimony from the appellant’s
Supervisor and the Manager, Customer Service. ID at 14-15. The administrative
judge further found that, through these letters, the agency gave the appellant
instructions to follow but that he failed to follow them, Archerda v. Department
of Defense, 121 M.S.P.R. 314, ¶ 22 (2014), and that therefore the charge was
sustained, ID at 15.
¶6 The administrative judge next addressed the appellant’s claim of harmful
procedural error. Here, the administrative judge found that the appellant failed to
set forth a regulation or a collective bargaining agreement statement that he
believed the agency violated, how it was violated, and that he wa s harmed
thereby. ID at 15-16. The administrative judge considered the appellant’s
general claim that the agency violated his rights under the Health Insurance
Portability and Accountability Act of 1996 (HIPAA) and that, in conducting the
investigation, the investigator acted outside the scope of the Inspector General
prognosis of “back and blood pressure,” that she had never seen the appellant, and that
the signature on the note was not hers. ID at 10-12; IAF, Tab 8 at 42.
5
Act of 1978 (IG Act). 4 The administrative judge found, based on the testimony of
the investigator that the investigation was authorized by her supervisor who
reviewed it for authorization under the IG Act, that the investigator provided the
clinic administrator with a HIPAA Request for Information Letter before
speaking with her, and that both she and the individual who the appellant falsely
claimed signed his medical note were provided with the letter. ID at 16; IAF,
Tab 8 at 48-49. The administrative judge further considered testimony of the
investigator to the effect that the records accessed included no medical records or
tests, but rather information as to when and by whom the appellan t was, or was
not, seen at the clinic, and the lack of any contrary evidence from the appellant.
The administrative judge concluded, therefore, that the appellant failed to
establish his claim of harmful procedural error. Lee v. Department of Labor,
110 M.S.P.R. 355, ¶ 10 (2008); ID at 16.
¶7 The administrative judge found that the agency proved that a nexus exists
between the sustained charges and the efficiency of the service. Archerda,
121 M.S.P.R. 314, ¶ 4; Valenzuela v. Department of the Army, 107 M.S.P.R. 549,
¶ 14 (2007); Tanner v. Department of Transportation, 65 M.S.P.R. 169, 172
(1994); ID at 17-18. Regarding the reasonableness of the penalty, the
administrative judge further found that the deciding official considered the
relevant Douglas 5 factors, both aggravating and mitigating, and that, therefore,
she need not independently weigh them. ID at 18-19. Nonetheless, she found
that the multiplicity of charges was sufficient to support the penalty of removal.
ID at 19-20.
4
The IG Act of 1978 authorizes the agency’s OIG to investigate allegations of fraud,
waste, and abuse in programs and operations of the U.S. Postal Service, including
investigations of suspected workers’ compensation and leave benefits fraud and abuse.
IAF, Tab 8 at 48.
5
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981), sets forth a
nonexhaustive list of factors deemed appropriate for consideration in determining the
reasonableness of an agency-imposed penalty.
6
¶8 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposi tion, PFR File, Tab 4.
¶9 The appellant does not, on review, challenge the administrative judge’s
findings on the merits of the charges, nexus, or t he reasonableness of the penalty,
and we discern no basis upon which to disturb those findings. See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions).
¶10 On review, the appellant argues that he did not receive a copy of the
“[investigator’s] written testimony” until 3 days after the hearing. PFR File,
Tab 1 at 1. The appellant’s claim on this point is unclear, and he has not
explained it. To the extent he is referring to the investigator’s summary of her
findings, that document, which appears at the beginning of the report of
investigation, is a part of the file below, IAF, Tab 8 at 38-40, and was properly
served on the appellant 6 weeks before the hearing. If the appellant is referring to
the investigator’s testimony, the appellant was present at the hearing when the
investigator provided her testimony. He has not indicated that he requested a
transcript of the proceedings. Most importantly, he has failed to show, or
suggest, how he was harmed by the manner in which he received the
investigator’s “written testimony.”
¶11 The appellant next contends that HIPAA 1996 “overides” (sic) HIPAA
1974. PFR File, Tab 1 at 1. Again, the appellant has failed to explain his claim.
In any event, he did not raise such an argument below, and therefore we will not
now consider it. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980).
¶12 The appellant also alleges on review that the agency violated his rights
under the Privacy Act. PFR File, Tab 1 at 1. He contends that “the Privacy
Act . . . overides [sic] the HIPPA 1974.” Id. The Board lacks jurisdiction to
adjudicate Privacy Act claims. Calhoon v. Department of the Treasury,
7
90 M.S.P.R. 375, ¶ 15 (2001) (stating that Federal district courts, not the Board,
are the appropriate forum for adjudication of a Privacy Act claim). Thus, we
need not consider the appellant’s allegations pertaining to the Privacy Act under
the circumstances of this case. 6
¶13 Finally, the appellant argues that the Manager, Customer Service, testified
that she was concerned with the findings in the report of investigation because the
appellant previously was suspected of providing a fraudulent doctor’s note at his
prior station and that the investigator’s testimony was in accord . PFR File, Tab 1
at 1. During the investigation in this case, the Manager, Customer Service, did
express concerns about the authenticity of the doctor’s note the appellant
submitted because he previously had been suspected of providing fraudulent
doctors’ notes. IAF, Tab 8 at 41. Also, the investigator noted those concerns in
her summary of the investigation. Id. at 39. As such, the appellant was aware
when he received a copy of the report of investigation that at least one agency
official was considering his prior misconduct. However, to the extent the
appellant suggests that such consideration was improper, he did not raise that
claim before the administrative judge in this case, and his failure to do so then
precludes his doing so on review. Banks, 4 M.S.P.R. at 271. With his petition,
the appellant submitted a copy of a settlement agreement reached in his 2013
Board appeal, pursuant to which an earlier notice of proposed removal and letter
of decision were rescinded. 7 PFR File, Tab 1 at 12. This document is neither
6
The Board has considered alleged violations of the Privacy Act when the Act is
directly implicated in matters over which it has jurisdiction. See Herman v. Department
of Justice, 115 M.S.P.R. 386, ¶ 10 (2011) (determining that the appellant raised a
nonfrivolous allegation of a protected disclosure based on an alleged violation of the
Privacy Act); Gill v. Department of Defense, 92 M.S.P.R. 23, ¶¶ 21-24 (2002) (finding
in a demotion appeal that the agency failed to prove its charge that the appellant
violated the Privacy Act). This is not the case here.
7
The appeal was dismissed as settled, Grant v. U.S. Postal Service, MSPB Docket No.
NY-0752-12-0169-B-1, Initial Decision at 1-2 (May 13, 2013), and the initial decision
became the Board’s final decision on June 17, 2013, when neither party filed a petition
for review.
8
new nor material. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
(1980); Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). To the
extent the appellant is suggesting that the agency’s considering his prior
misconduct is improper under the terms of the settlement agreement, he failed to
raise that argument below and therefore cannot be heard to raise it now. See
Banks, 4 M.S.P.R. at 271.
¶14 The appellant has also submitted on review copies of various pages of the
report of investigation. PFR File, Tab 1 at 2-8. Evidence that is already a part of
the record is not new. See Meier v. Department of the Interior, 3 M.S.P.R. 247,
256 (1980); IAF, Tab 8 at 37-41, 48.
NOTICE OF APPEAL RIGHTS 8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
8
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
10
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
11
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
9
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.