Crystal Rodgers v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRYSTAL N. RODGERS, DOCKET NUMBER
Appellant, SF-0752-22-0229-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 15, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Albert Lum , Brooklyn, New York, for the appellant.
Keith Reid , Esquire, Virginia Beach, Virginia, for the appellant.
Alexander R. Rivera , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal from Federal service. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute 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. Except as expressly
MODIFIED to discuss both the appellant’s affirmative defense of retaliation for
engaging in equal employment opportunity (EEO) activity and the agency’s
consideration of the appellant’s length of service in its penalty determination, we
AFFIRM the initial decision.
The appellant has not challenged the administrative judge’s finding that the
agency met its burden of proof as to its charges. 2 Petition for Review (PFR) File,
Tab 1. On review, she has reasserted her argument that the agency improperly
subjected her to double punishment by placing her on an emergency suspension
and later removing her. Id. at 10-15. Although an agency cannot punish
an employee twice for the same conduct, Adamek v. U.S. Postal Service,
2
The appellant argues that “the safety talks from July 2021 to September 2021 should
[not] have been part of [the] discipline” because she was on leave during that time.
Petition for Review File, Tab 1 at 9. To the extent the agency relied on those safety
talks to sustain its charges against the appellant, this was erroneous because they
occurred after the misconduct. Initial Appeal File (IAF), Tab 5 at 23-24. However, any
error was harmless because, as discussed by the administrative judge, the appellant was
on notice of the agency’s policy at the time of the misconduct. IAF, Tab 30, Initial
Decision at 2-4, 17-19 (summarizing the agency’s safety briefings between April and
December 2020, noting the letter of reprimand issued to the appellant, which explicitly
put her on notice of the agency’s policy at issue in this appeal, and recognizing the
multiple instructions given to the appellant regarding the agency’s policy before the
misconduct occurred); see Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
(1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision).
3
13 M.S.P.R. 224 (1982), we agree with the administrative judge, for the reasons
stated in the initial decision, that the appellant was not punished twice for the
same offense and, therefore, she cannot prevail in her double punishment
argument, Initial Appeal File (IAF), Tab 30, Initial Decision (ID) at 33-39. In
this case, the agency did not consider the emergency suspension to be in lieu of
the contemplated discipline. IAF, Tab 22 at 5. The emergency suspension had a
different basis than the removal, ID at 35-39, and because the Board lacks
jurisdiction over suspensions of 14 days or less, 5 U.S.C. § 7512, we are
precluded from deciding if the emergency suspension was improper. See Bradley
v. U.S. Postal Service, 96 M.S.P.R. 539, ¶ 12 (2004) (holding that whether an
emergency placement in off-duty status and a subsequent adverse action
constitute double punishment turns on the question of whether the reason for the
two actions was the same); see also Harrison v. U.S. Postal Service, 26 M.S.P.R.
37, 38-39 (1985).
Although not explicitly raised by the appellant on review, we address two
other matters in this order. First, in analyzing the appellant’s retaliation
affirmative defense, the administrative judge identified the legal standard set
forth in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), overruled
in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 23-25, she discussed the various methods of direct and circumstantial
evidence, and she implicitly found that the appellant did not prove that retaliation
was a motivating factor in the removal decision. ID at 30-32. The Board has
since overruled Savage to the extent it held that the McDonnell Douglas
framework is not applicable to Board proceedings. Pridgen, 2022 MSPB 31,
¶ 25. Nonetheless, the outcome of this appeal under Pridgen would be the same
as that arrived at by the administrative judge. Notably, under Pridgen, the
appellant must still show that the prohibited consideration of the appellant’s EEO
activity was at least a motivating factor in the agency’s decision to remove her,
4
id., ¶¶ 20-22, 30, and we agree with the administrative judge’s implicit finding
that the appellant failed to make this showing, ID at 30-32.
Second, the agency, in its consideration of the penalty factors enumerated
in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), appears to have
used the appellant’s 21 years of service as an aggravating factor, reasoning that
the misconduct should not have occurred based on the appellant’s considerable
experience with the agency. IAF, Tab 1 at 16. The Board has not endorsed this
approach. See Shelly v. Department of the Treasury, 75 M.S.P.R. 677, 684 (1997)
(disagreeing with the agency’s position that the appellant’s length of service was
an aggravating factor because a longtime employee “should have known better”
and, instead, considering the appellant’s 23 years of service as a mitigating
factor). However, we find that this error is harmless because, as set forth in the
initial decision, on the whole, the Douglas factors support a finding that removal
was a reasonable penalty. ID at 42-45; see Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of
an initial decision).
We have considered the appellant’s remaining arguments on review but
conclude that they provide no basis to disturb the initial decision. 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 references, and made reasoned conclusions on issues of
credibility). 3 We therefore deny the petition for review and affirm the initial
decision as modified.
3
We have not considered the appellant’s argument, raised for the first time on review,
that the agency violated her due process rights by failing to conduct an adequate
investigation into her misconduct because she has not established that it is based on new
evidence that was unavailable prior to the close of the record despite her due diligence.
PFR File, Tab 1 at 9, 14; see Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980).
5
NOTICE OF APPEAL RIGHTS 4
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 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
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:
4
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.
6
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
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. 420 (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
7
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
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
8
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. 5 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
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.
5
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.
9
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.