Dorothy Gibbs v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOROTHY GIBBS, DOCKET NUMBER
Appellant, NY-0752-18-0047-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 24, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Silas Burgess, III , New York, New York, for the appellant.
Anthony V. Merlino , Esquire, and David S. Friedman , Esquire, New York,
New York, 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
sustained the agency’s decision demoting her from her position as a Postmaster to
a Full Time Mail Handler. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 5 C.F.R. § 1201.113(b).
BACKGROUND
By letter dated June 9, 2017, the agency proposed reducing the appellant in
grade and pay from her supervisory position as a Postmaster to a nonsupervisory
position as a Full Time Mail Handler, Level 4, based on the charge of conduct
unbecoming a supervisor. In the narrative description under the charge, the
agency alleged that the appellant failed to report an incident in which she was
sexually assaulted by one of her subordinates in July 2014, but reached an
out-of-court settlement agreement by which her subordinate would pay the
appellant $10,000 in exchange for her agreement not to file a civil lawsuit against
him. Initial Appeal File (IAF), Tab 7 at 18-21. The appellant provided a written
reply to the proposal. IAF, Tab 9 at 10-12. After considering the appellant’s
reply, the deciding official issued a decision letter sustaining the charge and the
demotion penalty. IAF, Tab 1 at 14-18.
The appellant timely filed the instant Board appeal challenging her
demotion, arguing that the agency committed harmful procedural error. Id. at 6.
In response to the administrative judge’s affirmative defense order, IAF, Tab 3,
the appellant elaborated on her claim, arguing that the charge was unsupported by
3
the record and that the demotion penalty was unreasonable. IAF, Tab 6 at 17-22;
Tab 10 at 11-12. Additionally, the appellant raised the following affirmative
defenses: (1) the agency committed harmful procedural errors by issuing the
proposed demotion without conducting a pre-disciplinary interview or an
independent investigation in violation of the agency collective bargaining
agreement, by denying the appellant’s request for a union representative to be
present when she received the proposal letter in violation of her Weingarten 2
rights, by relying on a vague and inaccurate charge, and by failing to adequately
consider lesser alternative penalties; (2) the agency committed due process
violations when the proposing official relied on ex parte information obtained
during the agency’s Office of Inspector General (OIG) investigation related to the
sexual assault without providing the appellant with notice and an opportunity to
respond, and further, by preventing the appellant from participating in an
arbitration proceeding that the appellant argued impacted her rights, and relying
on the unfavorable arbitration decision as an unnoticed “aggravating” factor in
the demotion decision; and (3) that the demotion was taken in retaliation for the
appellant’s prior protected equal employment opportunity (EEO) activity, or that
the agency treated her disparately and discriminated against her. IAF, Tab 6
at 6-17, 22-23; Tab 10 at 6-11; Tab 30 at 8.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision concluding that the agency proved the conduct
unbecoming charge by preponderant evidence and that the appellant failed to
prove any of her affirmative defenses. IAF, Tab 43, Initial Decision (ID)
at 15-28, 29-33. Additionally, the administrative judge concluded that a nexus
2
Weingarten rights involve a private sector employee’s right, articulated in
National Labor Relations Board v. Weingarten, Inc., 420 U.S. 251, 260 (1975), to
request union representation at an investigatory interview that the employee reasonably
believes might result in disciplinary action. See Howard v. Office of Personnel
Management, 31 M.S.P.R. 617, 621 (1986), aff’d, 837 F.2d 1098 (Fed. Cir. 1987)
(Table). Congress granted Federal employees Weingarten-type rights in the Civil
Service Reform Act. 5 U.S.C. § 7114(a)(2)(B).
4
existed between the charge and the efficiency of the service, and that the agency’s
chosen demotion penalty did not exceed the bounds of reasonableness.
ID at 28-29, 33-35. Consequently, the administrative judge affirmed the
demotion decision. ID at 36.
The appellant has timely filed a petition for review of the initial decision,
and the agency has filed a response in opposition. Petition for Review (PFR)
File, Tabs 1, 3. The appellant has not filed a reply.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant generally challenges the administrative judge’s
credibility determinations, argues that the administrative judge incorrectly
concluded that the agency met its burden of proving the charge, and argues that
she did in fact alert the proper authorities of the sexual assault in a manner
consistent with agency policy. PFR File, Tab 1 at 4. However, she does not
challenge the administrative judge’s findings regarding her affirmative defenses.
Included as an attachment to her petition for review, the appellant provides
89 pages of filings, all of which were included in the record below, including a
copy of her post-hearing written closing brief and the initial decision. Id. at 5-93.
The Board has held that pleadings that do not raise specific arguments of error
and instead merely incorporate all arguments set forth in a brief submitted below
do not meet the criteria for Board review because they do not explain how or why
the administrative judge erred. See Mulroy v. Office of Personnel Management,
92 M.S.P.R. 404, ¶15 (2002), overruled on other grounds by Clark v. Office of
Personnel Management, 120 M.S.P.R. 440, ¶ 12 (2013); Mawson v. Department
of the Navy, 48 M.S.P.R. 318, 321 (1991). The appellant has not provided any
new argument or allegation of error by the administrative judge related to these
documents, and therefore, we decline to reconsider the arguments contained in the
resubmitted documents.
5
Regarding the appellant’s argument on review that the agency failed to
prove the charge of conduct unbecoming, we find no error in the administrative
judge’s finding that the agency met its burden of proving the charge. PFR File,
Tab 1 at 4. When, as here, the agency’s charge contains a narrative explanation
for the basis of its action, the agency may sustain its charge by proving one or
more of the incidents described therein; proof of every incident is not required.
See Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 204 (1997). A charge of
“conduct unbecoming” has no specific elements of proof but is established by
proving that the employee committed the acts alleged in support of the general
label of the charge. See Canada v. Department of Homeland Security ,
113 M.S.P.R. 509, ¶ 9 (2010); Alvarado v. Department of the Air Force,
103 M.S.P.R. 1, ¶ 22 (2006), aff’d, 626 F. Supp. 2d 1140 (D. N.M. 2009),
aff’d, 490 F. App’x 932 (10th Cir. 2012). Thus, to prove its charge, the agency
was required to demonstrate that the appellant engaged in the underlying conduct
described in support of the broad label “conduct unbecoming a supervisor.”
See Canada, 113 M.S.P.R. 509, ¶ 9. The Board has held that such a charge
typically involves conduct that is improper, unsuitable, or detracts from one’s
character or reputation. See Social Security Administration v. Long, 113 M.S.P.R.
190, ¶ 42 (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011), and overruled on other
grounds by Department of Health and Human Services v. Jarboe , 2023 MSPB 22.
In the initial decision, the administrative judge correctly identified the
required elements for proving the generic charge of “conduct unbecoming.” ID
at 5 (citing Miles v. Department of the Army, 55 M.S.P.R. 633, 637 (1992)).
Additionally, in reaching her conclusion that the agency met its burden, the
administrative judge considered the undisputed fact that the appellant failed to
report the sexual assault incident to any of the individuals identified in agency
Publication 552 governing workplace harassment reporting requirements for
supervisors, the fact that the appellant received a training outlining the proper
course of conduct for reporting such incidents, and the fact that she admitted to
6
settling the underlying incident by accepting $10,000 from her subordinate in
exchange for not filing a civil lawsuit against him. ID at 7-9. Consequently,
the administrative judge concluded that the agency proved by preponderant
evidence that the appellant had engaged in the specific conduct outlined in the
narrative charge and that said conduct was “was improper and detracted from [the
appellant’s] character or reputation,” and therefore was conduct unbecoming of a
supervisor. ID at 15.
The appellant also argues that the administrative judge erred in her
credibility determinations. PFR File, Tab 1 at 4. When an administrative judge
has held a hearing and has made credibility determinations that were explicitly or
implicitly based on the witness’s demeanor while testifying, the Board must defer
to those credibility determinations and may overturn such determinations only
when it has “sufficiently sound” reasons for doing so. Purifoy v. Department of
Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016); Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). In the initial decision,
the administrative judge made detailed credibility findings, declining to credit the
appellant’s testimony that she reported the sexual assault to a supervisor
colleague, observing that the appellant had provided contrary information during
her interview with the agency’s OIG investigator, informing him that she had said
“nothing” to the colleague because he was already aware of the incident.
ID at 10; IAF, Tab 39, Hearing Transcript (HT) at 23-24. The administrative
judge also did not credit the appellant’s assertion that she had reported the
incident to the EEO office based on the fact that she could not initially provide
any information about who she allegedly reported the claim to in her interview
with the OIG investigator, and the fact that an EEO Data Analyst at the National
EEO Investigative Services Office testified at the hearing that there was no record
of the appellant filing a report during the relevant timeframe. ID at 10;
HT at 77-78. In making these determinations, the administrative judge relied on
the relevant factors set forth in Hillen v. Department of the Army, 35 M.S.P.R.
7453, 458 (1987), to assess the credibility of the numerous witnesses as to the
disputed factual matters. ID at 8-15 (citing Hillen, 35 M.S.P.R. at 458;
Hawkins v. Smithsonian Institution, 73 M.S.P.R. 397, 403-04 (1997)). Given the
administrative judge’s demeanor-based findings, we find that the appellant has
failed to provide a sufficiently sound reason to disturb these conclusions.
See Purifoy, 838 F.3d at 1372-73. Based on the foregoing, we conclude that the
administrative judge sufficiently considered all the relevant evidence, and we see
no reason to disturb her conclusion that the agency met its burden of proving the
charge of conduct unbecoming a supervisor. 3 Clay v. Department of the Army,
123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative
judge’s findings where she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on the issue of credibility); Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (same).
Additionally, although the appellant has not challenged the administrative
judge’s findings regarding her discrimination affirmative defense, we take this
3
On review, the appellant does not challenge the administrative judge’s findings that
the agency met its burden of proving a nexus between its action and the efficiency of
the service, and that the penalty was within the tolerable bounds of reasonableness.
ID at 28-29, 33-35. We discern no reason to disturb either finding. Additionally, to the
extent the appellant is arguing that the deciding official failed to appropriately weigh or
consider the relevant factors for assessing the appropriateness of an agency -imposed
penalty, as articulated by the Board in Douglas v. Veterans Administration, 5 M.S.P.R.
280, 305-06 (1981), the administrative judge correctly found that the deciding official
specifically identified the relevant Douglas factors applicable to the appellant’s case,
including the appellant’s lack of past discipline, the effect of the offense on her ability
to perform her duties, her position as a supervisor, her lack of apparent remorse, and the
lack of effective alternative discipline. PFR File, Tab 1 at 4; ID at 33-35. The Board
has made clear that not every Douglas factor is relevant to a particular case. See
Nagel v. Department of Health and Human Services, 707 F.2d 1384, 1386 (Fed. Cir.
1983) (“The [B]oard never intended that each [ Douglas] factor be applied mechanically,
nor did it intend mandatory consideration of irrelevant factors in a particular case.”);
Douglas, 5 M.S.P.R. at 305-06 (stating that not all of the factors will be pertinent in
every case, and it must be borne in mind that the relevant factors are not to be evaluated
mechanistically). Further, on review, the appellant has not specifically identified which
relevant factors she believes the administrative judge failed to address. Accordingly,
we find no error in the administrative judge’s determination that the agency considered
the relevant Douglas factors in effectuating the demotion decision.
8
opportunity to clarify one part of the initial decision. In addressing the
appellant’s discrimination affirmative defense in the initial decision, the
administrative judge referred to the appellant’s claim as one of “disparate
penalties” on one occasion, and cited Ly v. Department of the Treasury,
118 M.S.P.R. 481, ¶¶ 13-15 (2012), which concerns a claim of disparate
penalties. ID at 15, 31. An allegation that an appellant was treated less favorably
than others in the context of a discrimination claim is a claim of disparate
treatment that is analyzed under Title VII evidentiary standards. A claim of
disparate penalties, on the other hand, is a claim of unfair treatment
unaccompanied by a claim of discrimination. See Hooper v. Department of the
Interior, 120 M.S.P.R. 658, ¶ 8 (2014) (explaining that the standards for proving
an appellant was treated unfairly differ depending on whether an employee is
alleging discrimination or not).
Despite the administrative judge’s single reference to “disparate penalties”
and the citation to Ly, the remainder of the record makes clear that the appellant
was alleging disparate treatment on the basis of discrimination and in retaliation
for engaging in protected EEO activity. See IAF, Tab 6 at 22 (arguing that the
purported male comparator engaged in similar misconduct but was not reduced in
grade and pay, and that this constituted “disparate treatment”); Tab 28 at 6
(identifying the appellant’s affirmative defense as based on the “[d]isparity in
[t]reatment” based on the appellant’s gender); Tab 30 at 8 (correcting the
administrative judge’s status conference order summary, identifying that the
appellant was alleging that she was “treated disparately on account of her
sex . . .”); Tab 33 at 3 (accepting the appellant’s corrections to the status
conference summary, reflecting the “treated disparately” language); HT at 11,
265-65 (identifying the appellant’s affirmative defense as a claim that she was
treated disparately 4 ). Additionally, the administrative judge cited and applied the
4
On two occasions, the hearing transcription misidentifies “disparately” as
“disputatively,” but it is clear based on the context in which the words appear that
“disparately” is the intended word. HT at 264-65.
9
correct legal standard for analyzing disparate treatment claims in finding that the
appellant failed to meet her burden of proving the affirmative defense. ID
at 31-32; see Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 37 (2014)
(stating that, to be similarly situated, comparators 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). Accordingly, we conclude that the administrative judge correctly
adjudicated the appellant’s affirmative defense as an allegation of disparate
treatment.
Regarding the substance of the discrimination affirmative defense, in the
initial decision, the administrative judge determined that the appellant failed to
meet her burden of proving her affirmative defenses of disparate treatment on the
basis of discrimination and in retaliation for her prior EEO activity. ID at 29-33.
The administrative judge observed that the alleged comparator was not in the
same chain of command as the appellant and did not engage in the same or
substantially similar misconduct as the appellant. ID at 31-32. Consequently, the
administrative judge concluded that the appellant did not establish that
discrimination was a motivating factor in the agency’s decision to demote her.
ID at 33. Regarding the appellant’s claim of retaliation for prior EEO activity,
the administrative judge acknowledged that there was no dispute that the
appellant had participated in prior EEO activity, but concluded that the appellant
had not put forth any evidence that the deciding official was aware that the
appellant had done so at the time he issued his decision. ID at 27-28. Because
we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s
action, we need not resolve the issue of whether the appellant proved that
discrimination or retaliation was a “but-for” cause of the agency’s decisions.
10
See Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-22,
29-33.
Therefore, for the reasons discussed above, 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).
NOTICE OF APPEAL RIGHTS 5
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
5
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.
11
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
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
12
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
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
13
(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. 6 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.
6
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.
14
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.
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.