Boone Richardson Brantley, Sr v. United States Postal Service ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BOONE RICHARDSON BRANTLEY, DOCKET NUMBER
SR., DA-0752-14-0590-I-3
Appellant,
v.
DATE: April 15, 2016
UNITED STATES POSTAL SERVICE,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
A. Brian Henson, Esquire, and Christopher D. Vaughn, Esquire, Decatur,
Georgia, for the appellant.
Theresa M. Gegen, Esquire, Dallas, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his indefinite suspension. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See 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. Except as expressly MODIFIED by
this Final Order to address the appellant’s claim of disparate penalties, we
AFFIRM the initial decision.
¶2 Effective July 14, 2014, the agency indefinitely suspended the appellant,
from his position as an EAS-18 Postmaster for improper conduct, specifying that
the agency had reasonable cause to believe that he committed a crime that could
result in his imprisonment. Brantley v. U.S. Postal Service, MSPB Docket
No. DA-0752-14-0590-I-1, Initial Appeal File (IAF), Tab 5 at 23, 28. The agency
based the indefinite suspension on the appellant’s arrest on felony charges of
accessory after the fact to armed robbery with a firearm, which carried a possible
term of imprisonment. IAF, Tab 5 at 28. The charges arose from the appellant’s
attempt to protect his son who was a suspect in the police investigation of an
armed robbery. Id. at 42; Brantley v. U.S. Postal Service, MSPB Docket
No. DA-0752-14-0590-I-3, Refiled Appeal File (RAF), Tab 11 at 3-4. The
agency cancelled his suspension and returned him to duty after he pled guilty to
an amended charge of resisting arrest.
¶3 The appellant filed an appeal of his indefinite suspension with the Board
and requested that the administrative judge make a decision based on the written
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record. 2 RAF, Tabs 1, 13. The appellant also raised an affirmative defense
alleging disparate treatment based on his race (Caucasian), and he withdrew his
request for a hearing. RAF, Tab 8, Tab 11 at 3-4, Tab 15 at 2. Following the
submission of evidence, the administrative judge issued an initial decision
affirming the appellant’s indefinite suspension. RAF, Tab 21, Initial Decision
(ID) at 1.
¶4 The administrative judge sustained the agency’s charge finding that there
was reasonable cause to believe that the appellant committed a crime for which a
sentence of imprisonment could be imposed. ID at 5. The administrative judge
also found that the indefinite suspension was reasonable and had an ascertainable
end and that the agency proved there was a nexus between the alleged misconduct
by the appellant and the efficiency of the service ID at 6, 10. In addition, the
administrative judge found that the appellant failed to prove his affirmative
defense based on race, and that the deciding official considered all the relevant
factors in deciding to suspend the appellant indefinitely. ID at 10, 13.
¶5 The appellant filed a petition for review arguing that the agency failed to
consider the consistency of his penalty with the penalty imposed on another
employee, a District Safety Manager, who received paid administrative leave
during the agency’s investigation of her arrest based on a charge of aggravated
battery (two counts). Petition for Review (PFR) File, Tab 1 at 4-8. The agency
opposed his petition and submitted evidence that the agency removed the alleged
comparator after the initial decision was issued in this appeal. PFR File, Tab 3
at 17. The appellant argued in reply that the agency failed to explain why he
received an unpaid indefinite suspension and the alleged comparator received
2
The administrative judge dismissed the appellant’s first and second (refiled) appeals
without prejudice to refiling. IAF, Tab 11, Initial Decision at 1; Brantley v. U.S. Postal
Service, MSPB Docket No. DA-0752-14-0590-I-2, Tab 10, Initial Decision at 1. The
case before the Board on review involves the appellant’s petition for review of the
initial decision issued in his third refiled appeal. RAF, Tab 21, Initial Decision;
Petition for Review File, Tab 1.
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paid administrative leave during the agency investigations following their arrests.
PFR File, Tab 4.
The administrative judge properly found that the agency proved the charge that it
had reasonable cause to believe that the appellant had committed a crime for
which a sentence of imprisonment may imposed.
¶6 To sustain an indefinite suspension, the agency must show: (1) it imposed
the suspension for an authorized reason; (2) the suspension has an ascertainable
end, i.e., a determinable condition subsequent that will bring the suspension to a
conclusion; (3) the suspension bears a nexus to the efficiency of the service; and
(4) the penalty is reasonable. Sanchez v. Department of Energy, 117 M.S.P.R.
155, ¶ 9 (2011). One of the authorized circumstances for imposing an indefinite
suspension is when the agency has reasonable cause to believe an employee has
committed a crime for which a sentence of imprisonment could be imposed,
pending the outcome of the criminal proceeding or any subsequent agency action
following the conclusion of the criminal process. Gonzalez v. Department of
Homeland Security, 114 M.S.P.R. 318, ¶ 13 (2010). The U.S. Court of Appeals
for the Federal Circuit has held that “[a]n inquiry into the propriety of an
agency’s imposition of an indefinite suspension looks only to facts relating to
events prior to suspension that are proffered to support such an imposition.”
Rhodes v. Merit Systems Protection Board, 487 F.3d 1377, 1380 (Fed. Cir. 2007).
The Federal Circuit also has held that “an indictment following an investigation
and grand jury proceedings, would provide, absent special circumstances, more
than enough evidence of possible misconduct to meet the threshold requirement
of reasonable cause to suspend.” Dunnington v. Department of Justice, 956 F.2d
1151, 1157 (Fed. Cir. 1992).
¶7 The administrative judge found that the agency had reasonable cause to
believe that the appellant committed a crime punishable by imprisonment based
on the undisputed evidence of his indictment on a felony charge of accessory
after the fact to armed robbery with a firearm, which carried a possible term of
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imprisonment of up to 5 years. ID at 4. The administrative judge further found
that, when that the agency proposed to suspend the appellant indefinitely, the
agency had access to the documentation supporting his arrest, including a Bill of
Information, a warrant, an affidavit for arrest warrant, and the Union Parrish
Sheriff’s Office Event Attachment Report. ID at 4-5. On review, the appellant
does not challenge the administrative judge’s finding that the agency had
reasonable cause to believe that he committed a crime punishable by
imprisonment when the agency proposed his July 14, 2014 indefinite suspension,
and we discern no reason to disturb the administrative judge’s findings on this
issue. ID at 5.
The administrative judge properly found that the agency proved that the
indefinite suspension had an ascertainable end.
¶8 For an indefinite suspension to be valid, it must have an ascertainable end.
See Harding v. Department of Veterans Affairs, 115 M.S.P.R. 284, ¶ 15 (2010),
aff’d, 451 F. App’x 947 (Fed. Cir. 2011). The Board has found that an indefinite
suspension based on the existence of pending criminal charges has an
ascertainable end, i.e., the resolution of the criminal proceedings that are the
grounds for the suspension. Id., ¶ 17. In the decision letter, the agency informed
the appellant that his suspension would continue until the termination of the
criminal proceedings against him and for a reasonable time after the agency
determined its course of action based on the disposition of his criminal charges.
IAF, Tab 3 at 23. The administrative judge found, and we agree, that the
suspension had an ascertainable end. ID at 6. The appellant does not dispute this
finding on review.
The administrative judge properly found that the indefinite suspension of the
appellant promoted the efficiency of the service.
¶9 To show that an indefinite suspension promotes the efficiency of the
service, the agency must establish a nexus between the alleged misconduct and
the efficiency of the service. Harding, 115 M.S.P.R. 284, ¶ 21. An agency may
show nexus between off-duty misconduct and the efficiency of the service by
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three means: (1) a rebuttable presumption in certain egregious circumstances;
(2) preponderant evidence that the misconduct adversely affects the appellant’s or
coworkers’ job performance or the agency’s trust and confidence in the
appellant’s job performance; or (3) preponderant evidence that the misconduct
interfered with or adversely affected the agency’s mission. Id.¶10 The deciding official stated that he lost confidence in the appellant,
considering the nature and the gravity of his alleged off-duty criminal conduct
and his position of trust in the community as the Postmaster in charge of a postal
facility. RAF, Tab 16 at 14. The deciding official also stated that he lost trust in
the appellant’s ability to perform his duties, which involved making continual
judgment calls, supervising employees, and ensuring safe delivery of the mail.
Id. at 14, 18. The deciding official further stated that the media coverage of the
appellant’s misconduct adversely affected the agency’s mission by diminishing
the public’s trust and confidence. Id. at 18. The administrative judge found, and
we agree, that the agency proved that there was a nexus between the charged
off‑duty criminal misconduct and the efficiency of the service. ID at 6-7; see
Johnson v. Department of Health & Human Services, 22 M.S.P.R. 521, 528‑29
(1984) (finding nexus between off‑duty criminal misconduct and the efficiency of
the service). The appellant does not dispute this finding on review.
The administrative judge properly found that the appellant failed to prove his
affirmative defense of disparate treatment based on race.
¶11 In finding that the appellant failed to prove his affirmative defense of race
discrimination, the administrative judge properly applied the analytical
framework set forth in Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 51
(2015). ID at 10-11. Pursuant to Savage, an appellant may establish an
affirmative defense of race discrimination using direct evidence or any of three
types of circumstantial evidence: a convincing mosaic of evidence from which a
discriminatory intent may be inferred, evidence of disparate treatment of similarly
situated comparators, or evidence that the agency’s stated reason is not worthy of
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credence but rather a pretext for discrimination. Id., ¶¶ 42-43. If an appellant
shows by preponderant evidence that the prohibited consideration was a
motivating factor in the contested personnel action, in violation of 42 U.S.C.
§ 2000e-16, the Board will inquire whether the agency has shown by
preponderant evidence that it still would have taken the contested action in the
absence of the discriminatory or retaliatory motive. Id., ¶¶ 49-51. If the agency
meets that burden, its violation will not require reversal of the action. Id., ¶ 51.
¶12 For another employee to be deemed similarly situated for purposes of an
affirmative defense of discrimination based on disparate treatment, all relevant
aspects of the appellant’s employment situation must be “nearly identical” to that
of the comparator employee. Minh Tuyet Ly v. Department of the Treasury,
118 M.S.P.R. 481, ¶ 10 (2012). Thus, to be similarly situated, a comparator must
have reported to the same supervisor, been subjected to the same standards
governing discipline, and engaged in conduct similar to the appellant’s without
differentiating or mitigating circumstances. Id.¶13 On appeal below, the appellant argued that he is a member of a protected
class (Caucasian), that the agency subjected him to an adverse employment action
based on his indefinite suspension, and that he received a harsher penalty than an
African American employee who received paid administrative leave during the
agency’s investigation of her alleged criminal misconduct. RAF, Tab 11 at 3.
The administrative judge found that the appellant failed to prove his disparate
treatment claim based on race because the record was devoid of any facts to
support his claim that the real reason for the agency’s action was discrimination
as opposed to the reason articulated by the agency. ID at 10. The administrative
judge also found that the appellant failed to identify any similarly situated
employee who was not a member of his protected group and was treated more
favorably by the agency. ID at 12.
¶14 In reaching his decision, the administrative judge found that the appellant
did not hold the same job as the African American employee he identified, that
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they had different first-line supervisors, that the charges in their respective
proposal letters were different, and that their alleged criminal misconduct was
different. Id. The administrative judge also found that the agency considered
placing the appellant on administrative leave, but that the appellant took sick
leave the day after his arrest on January 30, 2014, and the agency granted the
leave he requested under the Family and Medical Leave Act of 1993 (FMLA),
from January 27, 2014, through June 14, 2015. ID at 13. The administrative
judge further considered the agency’s evidence that, under agency policy, an
employee is not entitled to paid administrative leave if he is unable to report to
work. Id. The administrative judge also noted evidence that the agency proposed
to remove the African American employee for her alleged misconduct, which is
harsher than the indefinite suspension penalty imposed on the appellant for his
alleged misconduct. ID at 12.
¶15 On review, the appellant does not dispute the administrative judge’s finding
that the record is devoid of any facts to support his claim that the real reason for
the agency’s action was discrimination, as opposed to the reason articulated by
the agency. ID at 12. Based on our review of the record, we find no reason to
disturb the administrative judge’s finding on this issue. See Hooper v.
Department of the Interior, 120 M.S.P.R. 658, ¶¶ 6-7 (2014) (finding that alleged
comparators were not similarly situated to the appellant, and therefore the
appellant did not establish discriminatory treatment, because the charged
misconduct and all of the relevant aspects of employment were not “nearly
identical” to the appellant’s); Hodge v. Department of Homeland Security,
114 M.S.P.R. 636, ¶¶ 9, 11-13 (2010) (denying a discrimination affirmative
defense because there was no evidence that the suspension was motivated by
discriminatory animus).
The administrative judge properly found that the penalty was reasonable.
¶16 Where, as here, the agency’s charge is sustained, the agency’s penalty
determination is entitled to deference and should be reviewed only to determine
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whether it is within the parameters of reasonableness. See Payne v. U.S. Postal
Service, 72 M.S.P.R. 646, 650 (1996). The factors that the Board will review in
determining the reasonableness of the penalty include considering its consistency
with the penalties imposed upon other employees for the same or similar offenses.
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). The
appellant argues on review that the agency’s penalty determination is not entitled
to deference by the Board because the deciding official failed to consider whether
the penalty was consistent with those imposed on similarly situated employees.
PFR File, Tab 1 at 4. We disagree. The record reflects that the deciding official
considered the relevant Douglas factors, including the consistency of the penalty
imposed on other employees for same or similar offenses, in determining that the
appellant’s indefinite suspension was reasonable and promoted the efficiency of
the service. RAF, Tab 16 at 17-18; IAF, Tab 5 at 22‑23.
¶17 The appellant argues on review that the administrative judge applied the
wrong standard to his claim of disparate penalties. PFR File, Tab 1 at 5-6.
Although not addressed in the initial decision, the record reflects that the
administrative judge properly informed the appellant of his burden of proof on
this issue. RAF, Tab 15 at 2-3. While the appellant’s arguments below focus on
his disparate treatment claim, see Chavez v. Small Business Administration,
121 M.S.P.R. 168, ¶ 19 (2014) (explaining that disparate penalty and disparate
treatment are different theories that have different elements of proof), he appears
to have attempted to raise a disparate penalties claim, i.e., a claim that the agency
failed to conscientiously consider the “consistency of the penalty with those
imposed upon other employees for the same or similar offenses,” Douglas,
5 M.S.P.R. 280, 305; RAF, Tab 18 at 5-6. We therefore modify the initial
decision to address the appellant’s contention, nonetheless finding his disparate
penalties claim does not provide a basis for review.
¶18 The appellant’s allegation that the agency treated him disparately to another
employee, without claiming prohibited discrimination, is an allegation of
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disparate penalties. Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657,
¶ 5 (2010). The appellant has the initial burden of showing that there is enough
similarity between both the nature of the misconduct and other factors to lead a
reasonable person to conclude that the agency treated similarly situated
employees differently. RAF, Tab 15 at 2-3; Boucher v. U.S. Postal Service,
118 M.S.P.R. 640, ¶¶ 20, 24 (2012). To “trigger” the agency’s burden of
production on disparate penalties, the appellant must show that there is enough
similarity between both the nature of the misconduct and other factors, such as
whether he and the comparator were in the same work unit, had the same
supervisor and/or deciding official, and whether the events occurred relatively
close in time, to lead a reasonable person to conclude that the agency treated
similarly situated employees differently. RAF, Tab 15 at 2-3; McNab v.
Department of the Army, 121 M.S.P.R. 661, ¶ 5 (2014).
¶19 Here, however, we discern no evidence or argument on review indicating
that there is enough similarity between both the nature of the appellant’s
misconduct and other factors to lead a reasonable person to conclude that the
agency treated similarly situated employees differently. See Boucher,
118 M.S.P.R. 640, ¶¶ 20, 24. The appellant argued on appeal that he shared a
second-level manager with the alleged comparator and that they engaged in
similar conduct because they were subject to the same disciplinary standards and
arrested for allegedly committing crimes that could result in imprisonment. RAF,
Tab 11 at 3, Tab 18 at 12-13. We find, however, that the nature of their alleged
misconduct and other factors lack sufficient similarity for a disparate penalties
analysis. The undisputed record reflects that they held different positions and
reported to different first‑line managers, and that different proposing and
deciding officials took different adverse actions against them based on different
charged misconduct after their arrests for allegedly committing different felony
offenses under vastly different circumstances. RAF, Tab 16 at 24-29, Tab 18
at 12; IAF, Tab 5 at 37-62, 82-86. The alleged comparator’s situation is also
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distinguishable from the appellant’s because he requested and received FMLA
leave based on his medical inability to work immediately after his arrest on
felony charges of accessory after the fact to an armed robbery with a firearm.
RAF, Tab 17 at 21, 26. According to the sworn declaration of the District Human
Resources Manager, the appellant was not entitled to paid administrative leave
under agency policy based on his inability to work. RAF, Tab 17 at 16.
¶20 Moreover, the appellant does not dispute that the agency proved the charge
underlying his indefinite suspension based on his indictment and his admissions
in the documents supporting his arrest. ID at 4-5. In contrast, the alleged
comparator received paid administrative leave during an agency investigation
after her arrest for aggravated battery, which she claimed was self-defense. RAF,
Tab 17 at 24; PFR File, Tab 3 at 17. After completing its investigation, but
before the court decided her criminal case, the agency removed the alleged
comparator from her Safety Manager position based on the charge that she
assaulted a young woman by throwing bleach in her face. PFR File, Tab 3 at 17.
The nature of her alleged misconduct and other factors are not similar to the
appellant’s, who remains employed by the agency as a Postmaster after his
criminal conviction. RAF, Tab 17 at 22, 26, Tab 18 at 30.
¶21 Because the appellant failed to meet his initial burden of production, he
failed to trigger the agency’s burden of proving it had a legitimate reason for the
different treatment by a preponderance of the evidence. See Lewis, 113 M.S.P.R.
657, ¶ 17. Accordingly, we need not consider the remaining arguments raised by
the appellant disputing the evidence and argument submitted by the agency as
proof that there was a legitimate reason for the difference in treatment.
Moreover, unlike the appellant, the agency removed the alleged comparator
before her criminal case for alleged aggravated battery was resolved by the court.
PFR File, Tab 3 at 17. The agency did not treat the alleged comparator less
harshly than the appellant who remains employed by the agency after pleading
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guilty to an amended charge of resisting arrest. RAF, Tab 17 at 22-23, Tab 18
at 30.
¶22 We find that the agency proved that the penalty was reasonable and
consistent for the proven charge based on the relevant Douglas factors. See
White v. U.S. Postal Service, 22 M.S.P.R. 452, 454-57 (1984) (sustaining the
indefinite suspension of a Postmaster indicted for tampering with evidence),
aff’d, 768 F.2d 334 (Fed. Cir. 1985). We therefore deny the petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request 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
If you submit your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
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representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. 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.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.