Raul Oliveros-Ballon v. United States Postal Service ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAUL OLIVEROS-BALLON, DOCKET NUMBER
Appellant, SF-0752-15-0615-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 15, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Linda A. Albers, Esquire, Laguna Hills, California, for the appellant.
Scott L. Zielinski, Esquire, Long Beach, California, 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
affirmed the agency’s removal action. 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 the erroneous application of the law to the facts of the case; the administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial decision.
BACKGROUND
¶2 Effective May 30, 2015, the agency removed the appellant from his
Supervisor of Customer Services position based on a charge of unacceptable
conduct. Initial Appeal File (IAF), Tab 4 at 15. The agency based its charge on
eight specifications that alleged, among other things, that the appellant made
inappropriate remarks to five female subordinate employees. Id. at 24-25. For
example, the appellant allegedly told an employee that he would be willing to
help her cheat on her husband, and informed a different employee that she could
have a day off in exchange for being “a little unprofessional.” Id. He also
allegedly touched an employee’s back and squeezed her shoulder. Id. at 24. The
appellant appealed his removal to the Board and requested a hearing. IAF, Tab 1
at 1-5. He disputed the agency’s charge and the reasonableness of the imposed
penalty, and alleged that the agency failed to follow its investigation procedures.
IAF, Tab 1 at 2, Tab 13 at 2-4, 7-15.
¶3 After holding a hearing, the administrative judge issued an initial decision
affirming the removal action. IAF, Tab 17, Initial Decision (ID) at 1, 12. The
administrative judge sustained seven of the eight specifications of the
unacceptable conduct charge, found a nexus between the sustained misconduct
and the efficiency of the service, and determined that the penalty of removal was
3
within the bounds of reasonableness. ID at 4-11. He further found that the
appellant failed to prove the affirmative defense of harmful procedural error or
establish a disparate penalties claim. ID at 8, 10-11.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded in opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charge of unacceptable conduct.
¶5 On review, the appellant challenges the administrative judge’s finding that
the agency proved its charge, raising the following arguments: (1) the agency and
the administrative judge improperly used prior bad acts to sustain the charge, in
violation of Rule 404(b)(1) of the Federal Rules of Evidence; and (2) the
administrative judge erred in relying on the testimony of the five complaining
witnesses (complainants) in finding that the agency proved its charge. As
discussed below, we affirm the administrative judge’s finding that the agency
proved the charge. ID at 8; see Burroughs v. Department of the Army, 918 F.2d
170, 172 (Fed. Cir. 1990) (finding that, where more than one event or factual
specification supports a single charge, proof of one or more, but not all, of the
supporting specifications is sufficient to sustain the charge).
¶6 Regarding the appellant’s argument that the agency and the administrative
judge improperly used prior bad acts to sustain the charge in violation of the
Federal Rules of Evidence, PFR File, Tab 1 at 3, 6, 13, we note that the Board
uses the Federal Rules of Evidence as nonbinding guidance, Social Security
Administration v. Long, 113 M.S.P.R. 190, ¶ 35 (2010), aff’d, 635 F.3d 526
(Fed. Cir. 2011). Rule 404(b)(1) states that “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” Here,
however, the agency did not use the appellant’s prior bad acts to prove his
character, but charged him with those acts. IAF, Tab 4 at 24-25. He has not
4
provided any further explanation why he believes the agency is precluded from
basing its charge on multiple specifications of misconduct.
¶7 On review, the appellant also disputes the administrative judge’s finding
that the complainants were more credible than him. PFR File, Tab 1 at 5-6, 8-12;
ID at 3. Specifically, the administrative judge found that the complainants
described remarkably similar incidents and found no evidence that they were
friends, worked closely together, or discussed the incidents with each other. ID
at 3. He also found that it was implausible that one of the complainants would
have fabricated her allegations merely to retaliate against the appellant for telling
her to button her shirt higher, as the appellant claimed. The administrative judge
further found it unlikely that another complainant could have made up her
allegations so quickly after the incident and presented it so convincingly to a
coworker. ID at 3-4. While the administrative judge found the complainants
testified vividly and consistently with their previous statements, he found the
appellant only offered perfunctory denials. Id.
¶8 The Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing. Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the administrative judge
heard live testimony and based his credibility determinations on the demeanor of
the witnesses. ID at 3-8. Thus, the Board may overturn such determinations only
if it has “sufficiently sound” reasons for doing so. Haebe, 288 F.3d at 1301.
¶9 For the following reasons, we find that the appellant’s allegations do not
provide a sufficiently sound reason to overturn the administrative judge’s
credibility determinations. 2 See Rapp v. Office of Personnel
2
The appellant argues that the administrative judge was biased and abused his
discretion in finding the complainants’ testimony more credible than his own testimony.
PFR File, Tab 1 at 8, 14. Because we find that the administrative judge properly made
demeanor-based credibility determinations, we also find that the appellant has not
established that the administrative judge was biased or abused his discretion. See
5
Management, 108 M.S.P.R. 674, ¶ 13 (2008) (finding that a sufficiently sound
reason to overturn a credibility determination is when the administrative judge’s
findings are incomplete, inconsistent with the weight of the evidence, and do not
reflect the record as a whole).
¶10 The appellant alleges that the administrative judge arbitrarily discredited his
testimony because it was “perfunctory,” and credited the complainants’ testimony
because it was “vivid.” PFR File, Tab 1 at 5, 8, 13; ID at 3-8. He argues that his
style of communication is due to his military background and the administrative
judge should not have used it to assess his credibility. PFR File, Tab 1 at 8. He
also cites to a decision of the U.S. Court of Appeals for the Fifth Circuit, Gee
Chee On v. Brownell, 253 F.2d 814, 817 (5th Cir. 1958), for the proposition that
“a court may not arbitrarily reject the testimony of a witness whose testimony
appears credible.” PFR File, Tab 1 at 13. The Board has held that an
administrative judge must consider the demeanor of a witness when making a
credibility determination. Hillen v. Department of the Army, 35 M.S.P.R. 453,
458, 462 (1987). We find that the administrative judge properly considered the
manner in which the testimony was delivered in making his demeanor-based
credibility determinations. See id. at 462 (finding that “demeanor” constitutes the
carriage, behavior, manner, and appearance of a witness during testimony).
¶11 The appellant also claims that the administrative judge failed to consider his
background as a “former Marine” and a “family man” and his “good employment
record” in determining the credibility of his testimony. PFR File, Tab 1 at 8.
However, an administrative judge is not required to consider these factors when
making a credibility determination. See Hillen, 35 M.S.P.R. at 458 (setting forth
the factors that an administrative judge must consider in making a credibility
determination).
Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980) (finding that a
party making a claim of bias against an administrative judge must overcome the
presumption of honesty and integrity that accompanies administrative adjudicators).
6
¶12 Additionally, the appellant argues that the administrative judge failed to
consider evidence that undermines the credibility of the complainants’ testimony.
First, he disputes the administrative judge’s finding that there was no evidence
that the complainants were friends, worked closely together, or discussed their
allegations with each other. PFR File, Tab 1 at 9, 11; ID at 3. The appellant
claims that the administrative judge overlooked evidence that the complainants
had the same work shift and worked at the same facility. PFR File, Tab 1 at 9.
Because the administrative judge’s finding that the complainants were credible is
consistent with the record, we find that the appellant’s mere conjecture that the
complainants might have communicated together before they testified does not
provide a sufficiently sound reason to disturb the administrative judge’s
credibility determinations. IAF, Tab 16, Hearing Compact Disc (HCD)
(testimony of B.F.) (00:25:20-00:25:53), (testimony of proposing official)
(00:11:07-00:12:43).
¶13 Next, the appellant alleges that the administrative judge violated Rule 608
of the Federal Rules of Evidence in failing to consider character evidence that
reflected the complainants’ untruthfulness. PFR File, Tab 1 at 6, 9, 14.
Rule 608(b) permits extrinsic impeachment evidence of bad acts not involving
criminal convictions when the bad acts involved dishonesty. Wright v. U.S.
Postal Service, 84 M.S.P.R. 607, ¶ 10 (1999). The Board also requires that an
administrative judge consider character evidence when making credibility
determinations. Hillen, 35 M.S.P.R. at 458-59. Here, however, the appellant did
not present any character evidence. Although two complainants testified
regarding their attendance issues that resulted in formal and informal discipline,
HCD (testimony of B.F.) (00:23:42-00:24:25), (testimony of B.C.)
(00:15:35-00:16:10), and one complainant testified about her emotional outburst
against the appellant that resulted in a letter of warning, HCD (testimony of
C.M.) (00:07:20-00:09:30), none of their testimony indicated that their acts
involved dishonesty.
7
¶14 Further, the appellant alleged in his written response to the proposal notice
that all the complainants had prior acts of misconduct or attendance problems, but
he did not submit any documentation showing that they had a capacity for
untruthfulness. IAF, Tab 4 at 22-23. To the extent the appellant is arguing that
the administrative judge failed to consider the complainants’ bias against the
appellant because he previously had disciplined them as their supervisor, we
disagree. PFR File, Tab 1 at 9, 14. The administrative judge explicitly
considered the complainants’ potential bias in the initial decision, but nonetheless
found their testimony credible. ID at 3; see Hillen, 35 M.S.P.R. at 458-60
(finding that, among the factors to be considered in assessing witness credibility,
is a witness’s bias or lack thereof).
¶15 The appellant also argues that the administrative judge failed to consider
evidence of the work environment, where “sexually vulgar talk” was pervasive.
PFR File, Tab 1 at 9-10. However, such evidence does not mitigate the
impropriety of the appellant’s conduct because supervisors are responsible for
maintaining a work environment free of sexual harassment. Cisneros v.
Department of Defense, 83 M.S.P.R. 390, ¶ 19 (1999), aff’d per curiam, 243 F.3d
562 (Fed. Cir. 2000) (Table); see Lowe v. Department of Justice, 63 M.S.P.R. 73,
75, 77 (1994) (finding that testimony regarding the office atmosphere of sexual
joking and innuendo was irrelevant to the appellant’s defense against a charge of
sexual harassment because it would not have mitigated the offensiveness of his
behavior of kissing, propositioning, and putting his arms around a fellow
employee); cf. Herrera-Martinez v. Social Security Administration, 84 M.S.P.R.
426, ¶ 16 (1999) (finding that, although condonation of behavior in the workplace
may be a factor mitigating the penalty, it does not always warrant mitigation).
¶16 Finally, the appellant contends that the agency should have provided
corroborating evidence beyond the complainants’ testimony because the agency
has the burden of proving the charge. PFR File, Tab 1 at 5-6, 8, 10-14. He cites
to Municipal Bond Corp. v. Commissioner of Internal Revenue, 341 F.2d 683, 691
8
(8th Cir. 1965), for the proposition that “prejudicial error in receiving
incompetent evidence will not be found unless it is affirmatively shown that such
evidence induced the court to make a finding which would not otherwise have
been made.” PFR File, Tab 1 at 13 (citing also Joseph A. Bass Co. v. United
States, 340 F.2d 842, 845 (8th Cir. 1965) (finding that, in nonjury cases, the
appellate court only will reverse on the basis of the admission of incompetent
evidence if the admission of such evidence affected the outcome)). The appellant
alleges that the case was “essentially decided on the incompetent evidence of
complainant’s [sic] testimony.” PFR File, Tab 1 at 13. He argues that the
complainants’ testimony was incompetent because it was not corroborated by
other evidence. Id. at 13. The appellant, however, does not support his
arguments that a lack of corroborating evidence renders the complainants’
testimony inadmissible or incompetent, or that the administrative judge cannot
sustain the agency’s specifications based on the hearing testimony. Further, the
agency corroborated the complainants’ testimony by calling two witnesses who
learned of the appellant’s conduct from the complainants. HCD (testimony of
L.L.), (testimony of H.G.); ID at 3-4.
¶17 Based on the foregoing, we find that the appellant’s arguments on review
provide no reason for disturbing the administrative judge’s finding that the
agency proved its charge of unacceptable conduct.
The appellant failed to prove his affirmative defense.
¶18 The appellant argues that the agency’s investigation was flawed and the
agency was biased. PFR File, Tab 1 at 2-4, 6, 12. The administrative judge
found that, even if it were true that the agency did not follow its procedure for
investigating a sexual harassment claim, the appellant failed to show that the
information gathered would have been different. ID at 8.
¶19 The Board has held that due process requires that a Federal employee facing
removal be provided “notice of the charges against him, an explanation of the
employer’s evidence, and an opportunity to present his side of the story.” Alford
9
v. Department of Defense, 118 M.S.P.R. 556, ¶ 6 (2012) (quoting Cleveland
Board of Education v. Loudermill, 470 U.S. 532, 546 (1985)). Here, the appellant
received written notice that explained the reasons for his proposed removal, and
he had the opportunity to make a written or oral reply to the deciding official.
IAF, Tab 4 at 24-31. The appellant made both a written and an oral response to
the deciding official, who considered the replies in deciding to remove the
appellant. Id. at 15, 17, 22-23.
¶20 To the extent the appellant is arguing that he was denied a “meaningful
opportunity to invoke the discretion of the decisionmaker” because the proposing
and deciding officials were biased, we disagree. Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999) (quoting
Loudermill, 470 U.S at 543). The appellant has failed to submit evidence that the
deciding official was actually biased or that the situation created by the agency by
its nature established an intolerably high risk of unfairness. See Martinez v.
Department of Veterans Affairs, 119 M.S.P.R. 37, ¶¶ 10-11 (2012) (finding that
the appellant has the burden of establishing a decision maker’s actual bias or an
intolerable risk of unfairness to prove a violation of due process and that a
deciding official’s familiarity with the facts of the case and expressed
predisposition contrary to the appellant’s interests does not constitute a due
process violation or harmful error). Therefore, we review the appellant’s
remaining claims of procedural due process as allegations of harmful procedural
error. See Stone, 179 F.3d at 1377-78 (finding that public employees are entitled
to procedural protections in addition to constitutional due process).
¶21 An agency’s procedural error is harmful only where the record shows that
the error likely caused the agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error. Stephen v. Department of
the Air Force, 47 M.S.P.R. 672, 681, 685 (1991); 5 C.F.R. § 1201.4(r). Even
assuming the agency violated the investigative procedures, as claimed, the
appellant still had the opportunity to present positive information about himself
10
and rebut the agency’s charge before the deciding official. The appellant has
failed to show that the deciding official lacked due diligence in adjudicating his
case. We find that the appellant has not proven his affirmative defense because
he has not shown that the agency’s alleged errors likely had a harmful effect on
his removal. 3
The agency established nexus and the reasonableness of the penalty.
¶22 Where, as here, the agency’s charge has been sustained, the Board will
review an agency-imposed penalty only to determine if the agency considered all
of the relevant Douglas factors 4 and exercised management discretion within
tolerable limits of reasonableness. See Portner v. Department of
Justice, 119 M.S.P.R. 365, ¶ 10 (2013). The administrative judge found that the
deciding official considered the relevant Douglas factors and that the penalty of
removal did not exceed the bounds of reasonableness. ID at 9-11. Specifically,
he found that the penalty was reasonable given the nature and seriousness of the
misconduct and its relationship to the appellant’s duties. ID at 9-10; see, e.g.,
Cisneros, 83 M.S.P.R. 390, ¶¶ 19-20 (finding that removal was a reasonable
penalty in view of the seriousness of the appellant’s sexual misconduct,
particularly its continual, unrelenting nature, its pervasiveness, its perpetration on
several female employees, and his position as a supervisor). He further found
that the appellant failed to establish disparate penalties. ID at 10-11. He noted
that, although the hearing testimony suggested each of the two alleged
3
The appellant argues that he did not receive full consideration of his affirmative
defense because the administrative judge thought he withdrew it during the hearing.
PFR File, Tab 1 at 6; ID at 8. However, we find that the administrative judge did not
make a harmful adjudicatory error because he considered the affirmative defense
despite noting the unclear arguments of the appellant’s representative during the
hearing. ID at 8; see Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
(1984).
4
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of 12 factors that are relevant in assessing the penalty to
be imposed for an act of misconduct.
11
comparators had been accused of harassment, the details of what they allegedly
did were vague, and there was no evidence that their alleged misconduct was as
pervasive or serious as the appellant’s. Id.
¶23 On review, the appellant reiterates his disparate penalties claim. PFR File,
Tab 1 at 3, 14. Specifically, he claims that one of the comparators, who was
“accused of sexual harassment,” was “only temporarily demoted.” Id. The
appellant’s broad allegations on review do not provide a reason to disturb the
administrative judge’s findings regarding the appellant’s disparate penalty claim.
ID at 10-11; see Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012)
(observing that one of the factors to consider in determining whether employees
are similarly situated is the nature of their misconduct). Finally, we find that
there is a nexus between the appellant’s misconduct and the efficiency of the
service because his misconduct occurred at work and undermined his ability to
supervise employees. See Parker v. U.S. Postal Service, 819 F.2d 1113, 1116
(Fed. Cir. 1987) (finding that there is a sufficient nexus between an employee’s
conduct and the efficiency of the service where the conduct occurred in part at
work).
The documents submitted on review do not constitute “new” evidence.
¶24 The appellant submits several documents on review as new evidence
consisting of his own declaration, written statements from coworkers, and a
photograph. PFR File, Tab 1 at 18-36. 5 The Board generally will not consider
evidence submitted for the first time on review absent a showing that: (1) the
documents and the information contained in the documents were unavailable
before the record closed despite due diligence; and (2) the evidence is of
sufficient weight to warrant an outcome different from that of the initial decision.
Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015); 5 C.F.R.
§ 1201.115(d). Where, as here, a hearing is held in a Board appeal, the record in
5
Several of the documents are difficult to discern. PFR File, Tab 1 at 33-35.
12
the case ordinarily closes at the conclusion of the hearing. See Ruffin v.
Department of the Treasury, 89 M.S.P.R. 396, ¶ 6 (2001); 5 C.F.R. § 1201.59(a).
Thus, we find that the record closed on September 15, 2015, the date of the
hearing. IAF, Tab 16. Because the appellant does not explain why the submitted
evidence was unavailable when the record closed despite his due diligence, we
decline to consider the documents further. PFR File, Tab 1 at 4-7, 10, 14, 17. 6
The appellant’s claims of adjudicatory error do not state a basis for review.
¶25 The appellant alleges that he never received agency records that he
requested below. Id. at 4. However, the appellant, who was represented by
counsel, failed to file a motion to compel in accordance with the Board’s
regulations. See 5 C.F.R. § 1201.73(c); IAF, Tab 2 at 2-3. The appellant’s
failure to file a motion to compel below precludes him from raising a discovery
dispute for the first time on review. See Szejner v. Office of Personnel
Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed. Cir.
2006).
¶26 The appellant also argues that his case was prejudiced because he was
denied supporting witness testimony at the hearing. PFR File, Tab 1 at 2, 5, 9-10.
The appellant had the opportunity to request witnesses in his prehearing
submission, IAF, Tab 6 at 2-3, Tab 13 at 5, and the administrative judge approved
all of his requested witnesses, IAF, Tab 14 at 2. Further, the administrative judge
gave the appellant the opportunity to call a rebuttal witness during the hearing,
but he declined to do so. HCD (testimony of the appellant) (00:00:35-00:00:47).
Thus, the appellant has failed to show that the administrative judge committed
error.
¶27 In conclusion, we find that the appellant’s arguments on review do not
provide a reason to disturb the initial decision. See Crosby v. U.S. Postal
6
We find that the appellant’s allegation that a coworker provided him with the
photograph after the hearing does not explain why he could not have obtained it before
the record closed. PFR File, Tab 1 at 10.
13
Service, 74 M.S.P.R. 98, 105-06 (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 on issues of credibility).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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.
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
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.