Donna M. Beauford v. United States Postal Service ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNA M. BEAUFORD, DOCKET NUMBER
Appellant, CH-0752-14-0104-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 24, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Glenn L. Smith, Esquire, Grand Rapids, Michigan, for the appellant.
David E. Mapp, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her indefinite suspension pending resolution of criminal charges.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the 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, and based on the
following points and authorities, 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. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant is a Customer Services Manager for the agency. Initial
Appeal File (IAF), Tab 7 at 54. In August 2013, the appellant was arrested on
agency premises by the Drug Enforcement Administration for covering up and
concealing money from a criminal investigation. Id. at 39, 49. The appellant was
indicted by a federal grand jury in August 2013. Id. at 48-52.
¶3 In September 2013, the agency issued a Notice of Proposed Indefinite
Suspension-Crime Situation, stating that there was reasonable cause to believe
that the appellant had committed one or more serious crimes for which a sentence
of imprisonment may be imposed. Id. at 23. The proposing official indicated that
allowing the appellant to remain at work had the potential to cause “unnecessary
disruption” to the agency’s operations, including from coworkers and customers,
given the nature of the charges against the appellant. Id. at 24. Although the
appellant was given 7 calendar days to respond to the proposal, she did not
respond. The deciding official issued a letter of decision indefinitely suspending
the appellant in October 2013. Id. at 16-21.
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¶4 The appellant filed a timely Board appeal. IAF, Tab 1. In response to the
appeal, the agency argued that the indefinite suspension was justified because the
appellant’s position required her to exercise a normal regard for the safety of
herself and others as well as participate in various accounting functions on behalf
of the agency involving large sums of money. IAF, Tab 7 at 9. In response to the
agency’s argument, the appellant stated that the agency had not proven a nexus
between the efficiency of the service and the crime that she was alleged to have
committed. IAF, Tab 10 at 4-7. She also argued due process violations based
upon both the proposing official’s failure to include certain arguments advanced
by the deciding official, as well as the agency’s inclusion of factual assertions in
its narrative response that were never provided to her. Id. at 6-7.
¶5 In his initial decision, the administrative judge sustained the indefinite
suspension, finding that there was a nexus between the criminal charges against
the appellant and the efficiency of the service because of the high level of trust
inherent in the appellant’s managerial position and the knowingly deceptive
nature of the crime with which she was charged. IAF, Tab 11, Initial Decision
(ID) at 5. In particular, the administrative judge found that the evidence was
sufficient to support the deciding official’s expressed loss of confidence in the
appellant’s ability to perform her duties following her indictment. ID at 5.
¶6 On petition for review, the appellant challenges only the administrative
judge’s finding of nexus. She also argues that the deciding official improperly
relied on his loss of confidence in her ability to perform her job duties because
that consideration was not included in the proposal notice. Petition for Review
(PFR) File, Tab 3 at 5-9. In response to the petition for review, the agency argues
that the appellant’s charged crime interfered with her ability to effectively
supervise subordinate employees who were aware of her arrest, that upper
management had lost confidence in the appellant, and that the appellant’s return
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to work would result in disruption of the agency’s operations. PFR File, Tab 5
at 9-10. 2
¶7 An indefinite suspension lasting more than 14 days may be taken “only for
such cause as will promote the efficiency of the service.” 5 U.S.C. § 7513(a); see
Harding v. Department of Veterans Affairs, 115 M.S.P.R. 284, ¶ 19 (2010), aff’d,
451 F. App’x 947 (Fed. Cir. 2011). Although “cause” is generally some specific
act or omission on the part of the employee that warrants disciplinary action, the
Board has found that a felony indictment is sufficient to satisfy the “cause”
requirement. Harding, 115 M.S.P.R. 284, ¶ 13. The agency may show a nexus
between off-duty misconduct and the efficiency of the service by 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. Kruger v. Department of
Justice, 32 M.S.P.R. 71, 74 (1987).
¶8 In his letter of decision, the deciding official noted that the appellant is held
to a high standard of conduct as a manager, and indicated that he had lost
confidence in her ability to serve as a facility head or manager. IAF, Tab 7 at 16.
He also noted the seriousness of the criminal charges brought against the
appellant and determined that those charges would bring about unnecessary
2
With its response to the petition for review, the agency submitted the appellant’s
November 2013 guilty plea to a lesser offense than the originally charged offense and
the United States Attorney’s recommendation of a sentence of probation. PFR File,
Tab 5 at 17-25. The agency has not argued how this evidence relates to the issue on
appeal other than to imply that the appellant was untruthful when she claimed that she
was not guilty of the charged crimes. Id. at 8. The appellant responded that this
evidence should not be included because it is not new and material. PFR File, Tab 6
at 4. To the extent that this evidence has been submitted for the first time on petition
for review merely to impeach the appellant, we find that it is not new and material
evidence and we do not consider it. See Clarke v. Department of Veterans Affairs,
121 M.S.P.R. 154, ¶ 18 (2014).
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disruption to the agency from coworkers and customers. Id. at 16-17.
Additionally, the deciding official stated that the criminal charges were suspected
or became known to some of the appellant’s subordinates and reflected negatively
on the agency. Id. He also found that the appellant would cause “unnecessary
disruption” in the day-to-day operations of the agency; the deciding official
therefore determined that the appellant should be suspended pending the
disposition of the criminal charges. Id. at 18.
¶9 A deciding official’s declaration that he lost confidence and trust in an
employee may satisfy the nexus requirement. See Ellis v. Department of
Defense, 114 M.S.P.R. 407, ¶ 9 (2010) (finding that nexus had been established
based upon the declaration of the deciding official). Additionally, an unsworn
document such as a proposal notice or decision, as opposed to a declaration, may
serve as valid proof where it is “not merely conclusory,” sets forth the
misconduct in great detail, and is supported by other evidence. See, e.g., Delancy
v. U.S. Postal Service, 88 M.S.P.R. 129, ¶ 8 (2001). We find that the deciding
official’s statements regarding nexus are supported by other evidence. For
instance, the deciding official stated that the appellant’s subordinates suspected
or became aware of the criminal charges. IAF, Tab 7 at 17. This assertion is
supported by the report of investigation, which indicated that the appellant was
arrested on-site at the agency. Id. at 36. It is therefore possible that the
subordinates could have witnessed the appellant’s arrest. The seriousness of the
charged crimes, mentioned by the deciding official in his decision, is also
detailed in the grand jury indictment. Id. at 49. We therefore find the record as a
whole supports a finding that the agency established nexus by the preponderance
of the evidence. See Ellis, 114 M.S.P.R. 407, ¶ 9.
¶10 In contesting the finding of nexus, the appellant argues that her position
does not involve handling money or dealing with customers. IAF, Tab 10 at 7.
She also stated in her January 2014 declaration that the crime with which she was
charged did not involve safety or an act of violence. Id. at 9. The appellant’s
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arguments do not, however, rebut the deciding official’s statement that he lost
confidence in the appellant’s ability to perform her duties as a manager.
Accordingly, we agree with the administrative judge that the agency has proven a
nexus between the charges against the appellant and the efficiency of the service
by preponderant evidence. See Kruger, 32 M.S.P.R. at 74.
¶11 The appellant challenged the sufficiency of the Notice of Proposed
Indefinite Suspension, stating that it did not describe the reasoning for the
proposal and that her due process rights were therefore violated. IAF, Tab 10
at 4; PFR File, Tab 2 at 8. The appellant did not respond to the proposed decision
despite the fact that she was informed that she had 7 calendar days to respond.
See IAF, Tab 7 at 24. We have previously held that when an appellant has not
responded to a proposed adverse action, we will not find a due process violation
without an indication that the appellant made a “reasonable effort” to respond, or
that the agency somehow denied the appellant the right to respond “through
action, negligence, or design.” Flores v. Department of Defense, 121 M.S.P.R.
287, ¶ 11 (2014). If the appellant believed that the agency’s proposal notice
failed to explain the connection between the charges against her and the
efficiency of the service, she could have raised that issue with the deciding
official. The record does not indicate, and the appellant has not argued, that she
attempted to respond to the proposed decision, or that the agency denied her the
right to respond. We therefore find that the appellant’s due process rights were
not violated in this respect. See id.
¶12 Finally, the appellant argues that the administrative judge, on his own
initiative, relied on the deciding official’s “loss of trust” in the appellant in order
to support his finding of nexus. PFR File, Tab 3 at 8-9. However, the deciding
official stated in his decision to indefinitely suspend the appellant that he “lost
confidence” in the appellant’s ability to serve in a managerial function. IAF,
Tab 7 at 17. We see no reason to find that the deciding official’s expressed loss
of confidence in the appellant differs from the administrative judge’s finding that
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the deciding official found her to be not trustworthy. See Merriam-Webster’s
Collegiate Dictionary 1265 (10 th ed. 2002) (to be trustworthy is to be “worthy of
confidence”). We therefore do not agree with the appellant’s assertion that the
administrative judge found nexus on a basis different from that of the deciding
official.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
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If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.